MOHD ARIF Vs. MOHD ARIF RAEEN

JUDGEMENT

(1.) Invoking the jurisdiction under Section 482 of the Code of Criminal Procedure to assail the order dated 9.2.2015 passed by the Chief Judicial Magistrate, Harda and the order dated 24.6.2015 passed by Additional Sessions Judge, Harda confirming the order of trial court, this petition has been preferred for setting aside the same.

(2.) On perusal of the facts as obtaining from the pleadings, it reveals that vide order dated 3.9.2012 of Chairman, M.P. Wakf Board respondent was appointed as mutwalli for a period of one year or until further orders, removing the applicant from the post of mutwalli. Because the charge of mutwalli was not delivered by the removed mutwalli to successor, however, the respondent submitted an application under Section 68 (2) and (3) of the Wakf Act, 1995. On filing such an application, notice was issued to the removed mutwalli (applicant), whereupon an application under Section 61 (3) of the Act was filed seeking dismissal of the application of the successor mutwalli (respondent). The said application has been rejected vide order impugned passed by CJM on 9.2.2015, which is confirmed in revision by the Additional Sessions Judge, however, this petition has been preferred by applicant.

(3.) Learned counsel appearing for the applicant has referred the provisions of Section 61(3) of the Act contending that until the complaint is made by the Board or by a person duly authorized by the Board the Magistrate can not take cognizance for an offence punishable under this Act. In the present case, the complaint has been filed by the successor mutwalli, and not by the Board which is not entertainable. Both the courts committed error of jurisdiction and also of the procedure as prescribed under the Code of Criminal Procedure, however, prayed to allow the application of the applicant, under Section 61 (3) of the Act, and the application filed by respondent under Section 68(2) & (3) may be dismissed. To buttress his contention, learned counsel has placed reliance on a judgment of this Court in the case of Said-ur-rehman vs.Mohammad Yusuf Khan and another, 2010 3 MPWN 67.