EMPEROR Vs. ALI MAHOMED ADAMALLT NO 1

JUDGEMENT

(1.) THIS is an appeal by the accused against his conviction under Section 10 read with Section 6A of the Mussalman Wakf Act of 1923 (as amended by Bombay Act XVIII of 1935). The objection to the order made by the learned Magistrate is purely technical, and it arises in this way.

(2.) UNDER Section 3 of the Mussalman Wakf Act, 1923, within six months from the commencement of the Act, (and as to the community to which the present accused belongs the Act came into operation on October 16, 1931), every muta-walli shall furnish to the Court, which in this case is the Small Cause Court, Bombay, certain particulars relating to the wakf ; and under Section 5 he has to deliver certain accounts. By Section 10 failure to furnish the required particulars under Section 3, or to deliver the accounts under Section 5, shall render the mutawalli liable to conviction and to be punished with a fine. That Act was amended by Bombay Act XVIII of 1935, which added a good many sections, some of which are material. UNDER Section 6A it is provided that notwithstanding anything contained in Section 3, it shall be competent to the Court, on failure of a mutawalli to furnish a statement as required under the section, to require the mutawalli to furnish, within such time as the Court shall fix, a statement containing all or any of the particulars referred to in the section, including a copy of the deed or instrument, if any, creating the wakf. Section 6B enables a corresponding order to be made in respect of accounts to be delivered under Section 5 . Then under Section 6C the Court is authorized to hold an inquiry to ascertain three things : (i) whether a wakf is a wakf to which the Act applies ; (ii) whether any property is the property of such wakf and whether the whole or any substantial portion of the subject-matter of such wakf is situate within the local limits of the jurisdiction of the Court; and (iii) who is the mutawalli of such wakf. UNDER Section 6F it is provided that the entries made by the Court in the Register of Wakfs and the findings recorded under Section 6C shall be final for the purposes of the Act. Then under Section 6L a Wakf Committee is constituted ; and under Section 6M power is given to the Court to refer at any time to the Wakf Committee or any three or more members thereof, for advice, opinion, inquiry, report or recommendation, within such time as the Court may direct, any matter relating to the registration, superintendence, administration and the control of wakfs, and in particular any matter relating to (a) the conduct of a' mutawalli or a trustee in the administration of a wakf or his fitness to continue as a mutawalli or a trustee, (b) the settlement, cancellation or alteration of a scheme for the administration of a wakf, or (c) the application of the funds of a wakf or any surplus thereof. By Section 10B it is provided that no prosecution under the Act shall be instituted except by or with the previous sanction of the Court given in the prescribed manner. The prescribed manner refers to Rule 26 of the Rules made under the Act.

(3.) THE accused did not comply with that order, and accordingly a prosecution was launched.