[Alienation Of Waqf Property Without Sanction] Trial Court Can't Take Cognizance U/S 52A Waqf Act Based On Police Report: Karnataka High Court

A single judge bench of Justice Shivashankar Amarannavar said “As per Section 52-A (3) of the Waqf Act, the Court can take cognizance only on complaint made by the Board or any officer duly authorised by the State Government in this behalf.”

It added “The word “complaint” has been defined under Section 2(d) of Cr .P.C. It does not include a police report. The Police report has been expressly excluded in the definition of complaint under Section 2(d) of the Cr .P.C.”

The court made the observations while deciding on a petition filed by Sayyad Murtuza Sayyad Kasim Haji, who had approached the court praying to quash the entire proceedings registered for the offence punishable under Section 52-A of the Act. The Waqf Officer of Bagalkote District filed the first information before the Station House Officer of Guledagudda P.S. On the basis of the said first information, the Guledagudda Police registered the case and on investigation filed chargesheet.

The bench said “The learned Magistrate has taken cognizance by order dated 06.04.2021 on the basis of the charge sheet/report against this petitioner for the offence under Section 52-A of the Waqf Act, 1995. The said cognizance taken by the learned Magistrate is not on complaint but it is on Police report.”

Following which it held “As per sub section (3) o f Section 52-A, the Court has to take cognizance for the offence under Section 52-A of the Waqf Act, 1995, only on the complaint. There is express legal bar engrafted in Section 52-A (3) of the Waqf Act, 1995 to take cognizance on the police report as the term used is “complaint”. The complaint as defined under Section 2(d) of the Cr.P.C. does not include a police report.”

It added “Taking cognizance by a learned Magistrate based on a police report against this petitioner for the offence under Section 52-A is bad in law. Hence, proceedings initiated against this petitioner in C.C.No.400/2021 pending on the file of Additional Civil Judge and JMFC Badami, sitting at Guledgudda are to be quashed.”

Accordingly it allowed the petition.

Appearance: Advocate Shivraj S Balloli for Petitioner.

HCGP P.N. Hatti for R1 and R2.

Citation No: 2023 LiveLaw (Kar) 439

Case Title: Sayyad Murtuza Sayyad Kasim Haji AND State of Karnataka & Other

Case No: CRIMINAL PETITION NO. 100697 OF 2023