1 2025:CGHC:6240 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 1388 of 2018 1 - Abdul Haider S/o Late Abdul Hafeez Aged About 48 Years Posted As Mutwalli Of Muslim Jamat, Jama Masjid Committee, Baloda Bazaar, R/o Nayapara, Durga Chowk, Baloda Bazaar, P. S. Baloda Tehsil And District Baloda Bazaar Chhattisgarh, District : Balodabazar-Bhathapara, Chhattisgarh ... Petitioner(s) versus 1 - State of Chhattisgarh Through The Secretary Department Of Home Affairs, Mahanandi Bhawan, Naya Raipur District Raipur Chhattisgarh, District : Raipur, Chhattisgarh 2 - Superintendent Of Police Baloda Bazar, District Baloda Bazaar Chhattisgarh, District : Balodabazar-Bhathapara, Chhattisgarh 3 - Station House Officer P. S. Baloda District Baloda Bazaar Chhattisgarh, District : Balodabazar-Bhathapara, Chhattisgarh 4 - Jilani Mohammad S/o Jahoor Mohammad Aged About 39 Years R/o Nayapara Chowk, Ward No. 16, Tahsil And District Baloda Bazaar Chhattisgarh, District : Balodabazar-Bhathapara, Chhattisgarh 5 - Chhattisgarhstate Waqf Board Through Chief Executive Officer, C-12/3, Devendra Nagar, Raipur District Raipur Chhattisgarh, District : Raipur, Chhattisgarh ... Respondent(s) For Petitioner(s) : Mr. Surfaraj Khan, Advocate. For Respondent/State : Mr. Shailendra Sharma, Panel Lawyer. For Respondent No. 4 : Mr. Pragalbha Sharma, on behalf of Mr. Adil Minhaj, Advocate. 2 Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge Order on Board Per Ramesh Sinha, Chief Justice 04/02/2025 1. Heard Mr. Surfaraj Khan, learned counsel for the petitioner. Also heard Mr. Shailendra Sharma, Panel Lawyer for the Respondent/State, Mr Pragalbha Sharma, learned counsel appearing on behalf of Mr. Adil Minhaj, for the Respondent No.4. 2. The present petition has been filed by the petitioner under Section 482 of the Code of Criminal Procedure for quashing of the FIR of Crime No. 345/2018 registered at police station, Baloda, District- Baloda Bazaar for the offence under Section 120-B, 406, 409, 420, 467, 468 and 471 of IPC and has prayed for following relief: "it is, therefore, prayed that the Petition may kindly be allowed and the order dated 20.06.2018 (Annexure P/1) passed by C.J.M. Baloda Bazaar and FIR No. 345/2018 (annexure P/2), registered by Police Station- Baloda and its consequential proceedings which may further culminate into filing of final report against the petitioner, may kindly be quashed, in the interest of justice." 3. Brief facts of the case are that respondent no. 4 /complainant Jilani Mohammad had filed an application under Section 156(3) of the Code of Criminal Procedure, 1973 on 11.04.2018 before the learned Chief Judicial Magistrate, Baloda Bazar, District Baloda Bazaar for a direction to police authorities to register the FIR against the accused persons and to investigate into the matter. It is alleged in the application under Section 156(3) of Cr.P.C. that the complainant is the president of Khwaja Garib Nawaj Ekta Committee, Baloda Bazaar and the petitioner Abdul Haider is a Mutawalli at Jamat Jama Masjid Committee Baloda Bazaar. He 3 embezzled/misappropriated the amount received to the Masjid from various sources and there is irregularity in maintaining accounts thereby he caused huge monetary loss to the Masjid and has committed criminal breach of trust. In support of the application under Section 156(3) of Cr.P.C., affidavits of the complainant and other witnesses have also been filed. The learned Chief Judicial Magistrate, Baloza Bazaar has passed the order dated 20.06.2018 directing the police of police station Baloda for registration of the FIR against the petitioner for investigation. In compliance of the order dated 20.06.2018, the FIR of Crime No. 33302001180345 has been registered against the petitioner on 03.07.2018 for the offence under Section 120-B, 406, 409, 420, 467, 468 & 471 of IPC which is under challenge in the present petition. 4. Learned counsel for the petitioner would submit that as per Section 83 of the Waqf Act, 1995, the petitioner is duly appointed Mutawalli of the Muslim Jamat Jama Masjid Committee, District Baloza Bazaar. The Section 61(3) of the Waqf Act, 1995 separate penalties are provided if a Mutawalli failed to discharge his duties and registration of the FIR against the petitioner amounts to overreach jurisdiction provided under the Waqf Act, 1995. He would further submits that the Waqf Act, 1995 is a complete act and if any person aggrieved by any order passed under the Act, the said person have a right to file a petition before the tribunal constituted under Section 83 of the Waqf Act, 1995. The allegation is that the petitioner is not accounted the income and expenditure of the Masjid during his tenure whereas the petitioner has submitted the audit report time to time to the Waqf Board under Section 33 and 50 of the Waqf Act, 1995. 5. It is also submitted by him that the respondent no.4/complainant wanted to remove the petitioner from the post of Mutawalli to sit himself on the said post. He also submit an application for conducting election of Mutawalli of Muslim Jamat Jama Masjid Committee, Baloda Bazaar and since Waqf Board has not accepted the application that no election process is prescribed under the Waqf Act, 1995, in order to eliminate him from the post of Mutawalli, he conspired with the other persons of the Masjid and made a complaint. He himself has declared Sheikh 4 Samshul Haque as Mutawalli of the said Muslim Jamat Jama Masjid Committee Baloda Bazaar. The Waqf Board of the state is care taker and also custodian of the property. He also submit that the FIR cannot be registered against the petitioner without holding the proper inquiry. It is purely a civil litigation if it is found that there is any irregularity but certainly not a criminal offence. Various complaints have been made by the members of the Muslim Jamat Jama Masjid Committee Baloda Bazaar against the respondent no.4 before the higher authorities of the district. Therefore, the impugned FIR smells malafide on the part of the respondent no.4 and the same is liable to quashed against the petitioner. 6. On the other hand, learned counsel for the State opposes the submissions made by learned counsel for the petitioner and have submitted that there is prima facie material in the case and the learned trial Court after considering the nature of allegation directed the police authorities to register the FIR and to investigate the matter, therefore, there is no merits in the petition and the same is liable to be dismissed. 7. We have heard learned counsel for the parties and perused the material annexed with the petition. 8. From perusal of the application under Section 156(3) of Cr.P.C. which has been annexed in the petition as Annexure R-4/2 it appears that the petitioner raised allegation of the certain irregularities in maintaining the account of the Muslim Jamat Jama Masjid Committee Baloda Bazaar. Various instances have been alleged in the application by the petitioner with the allegation that the petitioner has committed criminal breach of trust and misappropriated the amount of Muslim Jamat Jama Masjid Committee Baloda Bazaar. 9. Section 61 of the Waqf Act, 1995 provides penalty upon the Mutawalli if he failed to discharge his duties which is necessary to re-produced hereinbelow: 61. Penalties. - (1) If a mutawalli fails to - "(a) Apply for the registration of a [auqaf]. (b) Furnish statements of particulars or accounts or returns as required under this Act; 5 (c) Supply information or particulars as required by the Board; (d) Allow inspection of [waqf] properties, accounts, records or deeds and documents relating thereto; (e) Deliver possession of any [waqf] property, if ordered by the Board or Tribunal; (f) Carry out the directions of the Board; (g) Discharge any public dues; or (h) Do any other act which he is lawfully required to do by or under this Act. He shall, unless he satisfies the court or the Tribunal that there was reasonable cause for his failure, be punishable with fine which may extend to [ten thousand rupees for non-compliance of clauses (a) to (d) and in case of non-compliance of clauses (e) to (h), he shall be punishable with imprisonment for a term which may extend to six months and also with fine which may extend to ten thousand rupees]. (2) Notwithstanding anything contained in sub-section (1) if- (a) A mutawalli omits or fails, with a view to concealing the existence of a [waqf], to apply for its registration under this Act, - (i) in the case of a [waqf] created before the commencement of this Act, within the period specified therefore in sub-section (8) of section 36; (ii) in the case of any [waqf] created after such commencement, within three months from the date of the creation of the [waqf]; or (b) a mutawalli furnishes any statement, return or information to the Board, which he knows or has reason to believe to be false, misleading, untrue or incorrect in any material particular, he shall be punishable with imprisonment for a term which may extend to six months and also with fine which may extend to fifteen thousand rupees. (3) No court shall take cognizance of an offence punishable under this Act save upon complaint made by the Board or an officer duty authorized by the Board in this behalf. (4) No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act. (5) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the fine imposed under sub-section (1), when realized, shall be credited to the [waqf] Fund. (6) In every case where offender is convicted after the commencement of this Act, of an offence punishable under sub-section (1) and sentenced to a fine, the court shall also impose such term of imprisonment in default of payment of fine as is 6 authorized by law for such default." 10. Since the procedure for accounting the affairs of the Masjid by the Mutawalli has been provided in the Waqf Act, whether or not, the Mutawalli is guilty for irregularity committed by him, or not, would certainly be taken care by the Waqf Board, he can be punished under the provisions of Waqf Act 1995 and there is provision to punish the guilty persons for the said Act. From perusal of the complaints made against the respondent no.4 which is annexed with the petition as Annexure P/6, it appears that there is certain allegation against the respondent no.4 also with respect to his conduct in the Masjid Committee and it appears that in order to settle his personal grievance, he made complaint against the petitioner for which the FIR has been registered. From the consideration of the application under Section 156(3) of the Cr.P.C. and other document annexed in the petition, it reflects that it is only a procedural defect of maintaining the account by the petitioner whereas the audit report and other intimation to the Waqf Board is also there with respect to the accounting of the income and expenditure of the Muslim Jamat Jama Masjid Committee Baloda Bazaar. 11. In the matter of Paramjeet Batra vs. State of Uttarakhand, reported in (2013) 11 SCC 673, the Hon’ble Supreme Court recognized that although the inherent powers of a High Court under Section 482 of the Cr.P.C. (now Section 528 of the BNSS) should be exercised sparingly, yet the High Court must not hesitate in quashing such criminal proceedings which are essentially of a civil nature. It was held as under: “12. While exercising its jurisdiction under Section 482 of the Code the High Court has to be cautious. This power is to be used sparingly and only for the purpose of preventing abuse of the process of any court or otherwise to secure ends of justice. Whether a complaint discloses a criminal offence or not depends upon the nature of facts alleged therein. Whether essential ingredients of criminal offence are present or not has to be judged by the High Court. A complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available 7 and is, in fact, adopted as has happened in this case, the High Court should not hesitate to quash the criminal proceedings to prevent abuse of process of the court.” (emphasis supplied) 12. Relying upon the decision in Paramjeet Batra (supra), the Hon’ble Supreme Court in the matter of Randheer Singh vs. State of U.P., reported in (2021) 14 SCC 626, observed that criminal proceedings cannot be taken recourse to as a weapon of harassment. In Usha Chakraborty & Anr. vs. State of West Bengal & Anr., reported in 2023 SCC OnLine SC 90, relying upon Paramjeet Batra (supra) it was again held that where a dispute which is essentially of a civil nature, is given a cloak of a criminal offence, then such disputes can be quashed, by exercising the inherent powers under Section 482 of the Cr.P.C (now Section 528 of the BNSS). 13. In the result the petition is allowed. The impugned FIR No. 345/2018 for the offence under Section 120-B, 406, 409, 420, 467, 468 & 471 of IPC registered at police station- Baloda, District Baloda Bazar, against the petitioner is hereby quashed. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Alok ALOK SHARMA Digitally signed by ALOK SHARMA Date: 2025.02.22 11:05:04 +0530