A K KALIFULLAH Vs. M ABDUL KHADER

JUDGEMENT

(1.) These two Criminal Original Petitions are posted by the orders of My Lord the Hon'ble, the Chief Justice, in view of the reference made by Hon'ble Mr. Justice G.M. Akbar Ali in Criminal Original Petition (MD) No. 2321 of 2009 dated 2.9.2009. The issue involved here is:

(2.) Since Hon'ble Mr. Justice M. Jeyapaul took a view in Crl.R.C. (MD) No. 526 of 2006, dated 19.10.2006 that the term "Magistrate" indicates only the Executive Magistrate and differing from that view, as Hon'ble Mr. Justice G.M. Akbar Ali in Criminal Original Petition (MD) No. 2321 of 2009 dated 2.9.2009, has taken a view that the First Class Magistrate incorporated in Section 68(2) of the Wakf Act, 1995 [for brevity, "the Act"] only means Judicial Magistrate, by order dated 26.10.2009, My Lord the Hon'ble, the Chief Justice has directed the matter to be placed before a Division Bench. That is how, the matter is now before this Division Bench.

(3.) The facts of the case are that the Second Respondent herein had lodged a Complaint before the learned Judicial Magistrate No. 1, Tiruchirappalli under Section 68 of the Act and notice was ordered and the Petitioners herein had also filed a Counter. However, subsequent to this, the First Petitioner here in had filed Criminal Original Petition (MD) No. 2321 of 2009. In the election conducted to Hazrath Nabi Sallalahu Alaihi Vasallam Fathiha Wakh, in the year 2008, the Respondent, namely, Mr. M. Abdul Khader was elected as Managing Trustee. However, the Petitioner, viz., Mr. A.K. Kalifullah, has not handed over charges or records to the successor. Consequently, the above said Complaint has been lodged before the learned Judicial Magistrate No. 1, Tiruchirappalli. Challenging the filing of the above said Complaint before the learned Judicial Magistrate No. 1, Tiruchirappalli, the present Criminal Original Petition has been filed.