ABU TALIB HUSAIN Vs. STATE OF U.P.

JUDGEMENT

(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 dtd. 9/8/2022 arising out of Case Crime No.163 of 2022, under Ss. -323, 504, 506, 354 I.P.C., Police Station-Kotwali Nagar, District- Saharanpur as well as summoning order dtd. 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 Sec. -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 Sec. -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 Sec. -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 dtd. 7/9/1993 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.