Though Mutawalli Of Wakf Board Is A 'Public Servant', He Isn't Entitled To Protection U/S 197 CrPC: Allahabad High Court

The Allahabad High Court has held that a mutawalli of the wakf board, despite being deemed to be a public servant, is not entitled to protection under Section 197 CrPC (Prosecution of Judges and Public Servants). 

The bench of Justice Arun Kumar Singh Deshwal said that for applicability of Section 197 CrPC even for the person who is deemed to be a servant under any statute other than IPC, he must be removable by or with the sanction of Central or the State Government.

"Though by a deeming provision of Section-101 of the Waqf 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 Section197 Cr.P.C.," the Court said.

The Court was essentially dealing with a Section 482 CrPC plea filed by two persons praying to quash the entire proceedings of a Case including the chargesheet under Sections-323, 504, 506, 354 IPC as well as summoning order passed by Additional Chief Judicial Magistrate, Saharanpur.

The Counsel for the applicants argued that the impugned FIR was lodged and a charge sheet was filed on which cognizance was also taken by the Court, however, as per Section-101 of Wakf Act, 1995, the mutawalli of wakf would be deemed to be a public servant within the meaning of Section-21 of Indian Penal Code, 1860 and hence, a sanction from appropriate Government was required to prosecute them.

Regarding Applicant No. 2, it was submitted that he is the father of Applicant No. 1 and also assisted Applicant No. 1 in the discharge of public duty.

At the outset, the Court perused Section-101 of the Act, 1995 to note that not only mutawalli of Wakf but every member of the Managing Committee of Wakf are also deemed to be a public servant within the meaning of Section-21 IPC, however, they can be removed by the Wakf board (and not the government) as per Section 64 of the Act, 1995.

The Court further noted that for the applicability of Section-197 Cr.P.C. even for the person who is deemed to be a servant under any statute other than IPC, he must be removable by or with the sanction of Central or the State Government, and since the same is not the case with the mutawallis, they won't be entitled to protection under Section 197 CrPC.

To arrive at this conclusion, the Court rejected the plea.

Case title - Abu Talib Husain And Another vs. State of U.P. and Another 2023 LiveLaw (AB) 287 [APPLICATION U/S 482 No. - 18824 of 2023]

Case Citation: 2023 LiveLaw (AB) 287

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