HONOURABLE SRI JUSTICE S.RAVI KUMAR CRIMINAL PETITION No.5662 OF 2012 Dated 6-8-2014 Between:
Mohammed Ismail and others.
..Petitioners.
And:
The State of A.P. through Public Prosecutor, High Court, at Hyderabad and another.
..Respondents.
HONOURABLE SRI JUSTICE S.RAVI KUMAR CRIMINAL PETITION No.5662 OF 2012 ORDER:
This petition is filed to quash F.I.R. in Crime No.190 of 2012 of Golconda Police Station for the alleged offences under Sections 447, 427 and 379 I.P.C.
Petitioners herein are A.1 to A.3 in the above referred crime which is registered on a complaint given by the second respondent herein.
Heard both sides.
Advocate for petitioners submitted that first petitioner is president of Mosque Committee of Jama Masjid Hz. Omer Farooq (RA) O.U.Colony, Shaikpet at Hyderabad, and second petitioner is General Secretary of the said Mosque and third petitioner is one of the congregant of the above mosque.
It is submitted that this Masjid is in existence for the last four hundred years at Shaikpet, Hyderabad and the property in dispute is a Wakf property and the complainant has no right over the said property. He further submitted that dispute between the parties is purely of civil in nature and the Wakf Tribunal granted interim injunction in favour of Mosque and order of injunction pre- supposes possession and therefore, the allegation that the petitioners have trespassed and thereby, committed mischief and theft cannot be accepted prima facie. It is submitted that the first respondent filed a writ petition questioning the jurisdiction of the Wakf Tribunal and the said writ is dismissed answering in favour of the mosque, and writ appeal is preferred but no order suspending the same was granted and therefore, the injunction is in favour of the petitioners and the allegation of trespass cannot be accepted.
On the other hand, advocate for second respondent submitted that jurisdiction of Wakf tribunal is subject matter of appeal even otherwise no finding is given in the said writ about the nature of the property. He further submitted that petitioners filed civil suit and there is injunction in favour of the petitioners in respect of same property and that injunction is granted on merits and suppressing the same, eight months after the grant of said injunction, the petitioners obtained orders from the wakf Tribunal and as on the date of offence, the injunction was in favour of the second respondent and therefore, the objection of the petitioners is not tenable. It is further submitted that petitioners-accused blocked the road and when there are specific allegations of trespass causing mischief and theft, these aspects require investigation and therefore, there are no grounds to quash the proceedings.
Now, the point that would arise for my consideration in this petition is that whether the proceedings in Crime No.190 of 2012 of Golconda Police Station can be quashed or not.?
POINT:
I have perused the material papers filed along with quash petition.
In the F.I.R. it is alleged that members of Mosque Committee and some antisocial elements numbering about 25 in number came to the house of de facto complainant and broke the household articles and took away his electricity meter and they also constructed a compound wall in the west side of the plot occupying the road attached to his plot.
Now, the contention of the petitioners is that this is purely a civil dispute and both parties have approached the civil court and Wakf Tribunal and therefore, criminal complaint is nothing but abuse of process of law.
Advocate for petitioners relied on a Supreme Court decision in INDIAN OIL CORPORATION Vs. NEPC INDIA
[1]
LTD., AND OTHERS ( ) wherein it is held that
allegations contained in the complaint are taken on their face value do not constitute any offence, such complaint cannot be continued.
Advocate for petitioners submitted that even a reading of the complaint, it discloses that complainant only came to know about alleged incident and therefore, it does not attract any offence and the complaint is liable to quashed.
But the objection of the petitioners cannot be accepted because for registering F.I.R. what is required is information relating to commission of offence. It is not necessary that the informant must be the victim or he must be a direct witness to the occurrence. It is suffice for registering F.I.R. if information received reveal any commission of offence. Here in the complaint, it is stated that there was illegal trespass into the house of complainant where household articles are broken and electricity meter was taken away.
The other contention of the petitioners is that dispute is purely a civil dispute and the property is a wakf property and there is an injunction granted by Wakf Tribunal.
Here Civil Court granted injunction in favour of the complainant and Wakf Tribunal granted injunction in favour of the petitioners. According to advocate for petitioners, since in the writ, the jurisdiction of the Wakf Tribunal is confirmed, the injunction granted by civil court has no force. He has drawn my attention to the orders of this court in writ petition No.29937 of 2013 dated 28-4-2014. In the writ, this court has not given any findings as to the nature of property and there is no finding to say whether the property is wakf property or private property. In the writ, the contention raised by the complainant was that without registration and notification, property cannot be termed as ‘wakf’ and thereby, Tribunal cannot get jurisdiction but this court held that to invoke the jurisdiction of Wakf Tribunal, notification and registration are not necessary. So in the writ, nature of property is not decided and there are two injunctions; one from civil court and other from the tribunal in respect of the same property in favour of different parties.
Now the argument of the advocate for petitioners is that injunction pre-supposes possession and therefore, when wakf tribunal granted injunction, it has to be treated that petitioners are in possession. Admittedly, the injunction granted in favour of the petitioners by the Wakf Tribunal was on 10-4-2013 where the injunction in favour of the complainant by the civil court was on 18-6-2012. If the same analogy as submitted by the advocate for petitioner is applied injunction pre-supposes possession, when there is an order of injunction in favour of the complainant on 18-6-2012 itself, the complainant has to be treated in possession because as per Advocate for petitioner injunction pre-supposes possession, in which case allegations that the petitioners have trespassed into the property has to be accepted prima facie. This F.I.R. is registered on 18-6-2012 i.e., date on which injunction is granted but the injunction in favour of the petitioners is long after registration of F.I.R.
Now one of the objection of the advocate for petitioners is that since the property is a wakf property, the injunction granted by civil court has no force. But his contention cannot be accepted because there is no finding as to the nature of the property in the writ. According to the petitioners, they are law abiding citizens and they are falsely implicated in the case with a malafide intention. If really, the petitioners intended to uphold the rule of law, they ought to have approached the civil court which granted injunction, questioning the jurisdiction of the civil court and would have invited findings on that aspect or at least challenged that injunction order in an appellate court on the jurisdictional aspect. Along with the material papers, the petitioners have filed some photographs to contend that the allegation that they have taken away electricity meter is incorrect, to show that the electricity meter was hanging to a tree. But these photographs are dated 8-7-2012 whereas the alleged offence was on 15-6-2012. It is not difficult to bring such material, particularly, photos, long after the incident and those cannot be taken into consideration in a 482 Cr.P.C. petition.
Admittedly, writ appeal is filed against the orders in Writ Petition No.29937 of 2013 in which the following order is passed.
“As we noticed it is a strange circumstance as both the parties have approached different fora complaining against each other that both the fora have no jurisdiction, and both the fora have passed interim order against each other. We are of the prima facie view that when two orders are operating against each other passed by two different Courts, we do not want to complicate the problem. We give liberty to both the parties to approach appropriate forum without prejudice to rights and contentions for getting the orders vacated/proceedings dismissed, as may be advised. This order need not be construed as influencing factor and the observations made herein are for giving liberty to the parties only.”
From the above order, it is clear that a Division Bench of this court gave liberty to both parties to approach proper forum for getting orders vacated by recording the fact that there are interim orders against each other granted by two different forums.
Considering all these aspects, I am of the view that the allegations leveled in the complaint require investigation as they prima facie attract offences alleged, therefore, there are no grounds to quash the proceedings.
For these reasons, this Criminal Petition is dismissed as devoid of merits.
As a sequel to the disposal of this Criminal petition, the Miscellaneous Petitions, if any, pending, shall stand dismissed.
JUSTICE S.RAVI KUMAR Dated 6-8-2014.
Dvs.
HONOURABLE SRI JUSTICE S.RAVI KUMAR Dvs CRIMINAL PETITION No.5662 OF 2012 Dated 6-8-2014
[1] (2006) 6 SCC 736