K. Suguna, J.@mdashThese 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:
Whether the term "First Class Magistrate" used u/s 68(2) of the Wakf Act, 1995, means "Executive Magistrate" or "Judicial Magistrate".
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 u/s 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.
4. According to the learned Counsel for the Petitioners, as far as filing of Criminal Original Petition before the learned Judicial Magistrate is concerned, relying on Section 68(2) of the Act, it is contended that the nature of work to be administered by the Magistrate is administrative in nature and it is not penal in nature. Consequently, it has to be filed only before the Executive Magistrate and not before the Judicial Magistrate. u/s 61(4) of the Act, the term used therein is "Judicial Magistrate of First Class", which reads as follows:
61(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.
Consequently, according to the learned Counsel for the Petitioners, if the intention of the Rule Making Authority is that the term "Magistrate of the First Class" indicates only the "Judicial Magistrate", there would be a reference to that effect. Apart from this, according to the learned Counsel, when there is no penal provision, question of going before the Judicial Magistrate does not arise. Therefore, the term, "Magistrate of First Class" indicates only "Executive Magistrate".
5. On the other hand, according to the learned Counsel appearing for the First Respondent, as far as Section 68(2) of the Act is concerned, functions to be exercised on receipt of a Complaint by the Magistrate of First Class are to issue notice and pass an order directing delivery of charge or possession of records, accounts and properties of the Wakf to the successor Muthavalli or the Committee as the case may be, within a stipulated time; consequently, it is a judicial function and not an executive one. Apart from this, relying on Section 68(3) of the Act, it is his further submission that in the event of failure to comply with the orders passed by the Judicial Magistrate, a penal provision has been incorporated u/s 68(3) of the Act. As far as this classification of First Class or Second Class is concerned, according to her, it is only with reference to Judicial Magistrate. As far as Executive Magistrate is concerned, it relates to Revenue Authorities where there is no such classification.
6. In support of her contention, the learned Counsel has relied on Sections 11 & 20 of the Code of Criminal Procedure, wherein the terms "Judicial Magistrate" and "Executive Magistrate" respectively, have been dealt with. Apart from this, relying on Section 3(4) of the Code of Criminal Procedure, 1973, which reads as follows:
3(4). where, under any law, other than this Code, the functions exercisable by a Magistrate relate to matters-
(a) which involve the appreciation or shifting of evidence or the formulation of any decision which exposes any person to any punishment or penalty or detention in custody pending investigation, inquiry or trial or would have the effect of sending him for trial before any Court, they shall subject to the provisions of this Code, be exercisable by a Judicial Magistrate; or
(b) which are administrative or executive in nature, such as, the granting of a licence, the suspension or cancellation of a licence, sanctioning a prosecution or withdrawing from a prosecution, they shall, subject as aforesaid, be exercisable by an Executive Magistrate.
It is her further contention that functions exercisable by a Magistrate relate to matters, which involve appreciation or shifting of evidence or formulation of any decision, which could be done only by a Judicial Magistrate. Relying on clause (b) of sub-section (4) of Section 3 of the Code of Criminal Procedure, according to her, the nature of duty to be executed is granting of licence, suspension or cancellation of licence, sanctioning a prosecution or withdrawing from a prosecution, etc. and it has to be exercised by a Judicial Magistrate. According to the learned Counsel, as per Section 68(2) of the Act, the Magistrate concerned has to issue notice and pass an order directing delivery of charge or possession of records, accounts and properties of the Wakf to the successor Muthawalli or the Committee as the case may be, within a stipulated time and this can be done only by a Judicial Magistrate and not by an Executive Magistrate. Apart from this, relying on the judgment reported in
7. The stand taken by the learned Counsel for the Wakf Board is that the Wakf Act, 1995 was enacted in the year 1995, whereas Code of Criminal Procedure came into force in the year 1973. On the date of enactment of the Wakf Act in the year 1995, according to the learned Counsel, the provisions of the Code of Criminal Procedure were well within the knowledge of the Rule Making Authority, wherein the term "Judicial Magistrate" as well as "Executive Magistrate" has been dealt with, but the word used u/s 68(2) of the Act is Magistrate of First Class. As such, having been fully aware of such classification of the nature of duties to be performed by a Magistrate, the Rule Making Authority has carefully used the words "Magistrate of First Class". In support of her contention, the learned Counsel has relied on Paragraph No. 20 of the judgment in
20. Incidentally, the legislature is supposed to be aware of the needs of the society and the existing state of law: There is no reason whatsoever to consider that the legislature was unaware of the existing situation as regards the Portuguese Civil Laws with a different provision for limitation...
8. The learned Counsel appearing for the other Respondents has also advanced the same arguments, which were advanced by the learned Counsel appearing for the First Respondent. In addition to this, it is her contention that just to continue to be in possession of the records and other properties of the Wakf concerned, one way or the other, the Petitioners herein are dragging on the issue and filing repeated cases.
9. Yet another stand taken by the learned Counsel is that when there was transfer of the Scheme decree from the Civil Court to the Wakf Board, basing on the statutory provision and though the Petitioner had filed Special Leave Petition, now, according to her, though the private Respondents herein had got elected in the year 2009 and till date, in view of the interim orders granted, the Wakf is not able to function properly due to want of records and besides, according to her, though the Petitioners herein have filed Counter before the Magistrate, the jurisdiction aspect has not been raised therein. Basing on this, she has sought for the dismissal of the Criminal Original Petition.
10. We have considered the above arguments of the respective learned Counsel.
11. Now, the issue to be decided, in this case, is whether the term "Magistrate" which occurs u/s 68(2) of the Act would refer to "Judicial Magistrate" or "Executive Magistrate". Admittedly, the term use under the relevant section would refer to "Magistrate of First Class". As far as classification of these Magistrates is concerned, it can be only with reference to the Judicial Magistrate and not with reference to Executive Magistrate and as rightly pointed out by the learned Counsel for the Respondents, this can be seen from Section 11 of the Code of Criminal Procedure of 1973. Apart from this, a perusal of Section 68(2) of the Act also reveals that the functions to be performed by the Magistrate, on receipt of a Complaint are, to issue notice and pass an order directing delivery of charge or possession of records, accounts and properties of the Wakf to the successor Muthawalli or the Committee as the case may be, within a stipulated time. As far as this is concerned, when as per the statute, those functions can be done only by the Judicial Magistrate, in our opinion, the question holding the same as administrative in nature as there is no penal provision and therefore, it has to be construed only as "Executive Magistrate", is totally unsustainable.
12. Apart from the above, even with regard to the penal provision, as rightly pointed out by the learned Counsel for the Respondent, in the event of failure on the part of individual concerned u/s 68(3) of the Act, action can be initiated. Apart from this, as far as Section 61 of the Act is concerned, it deals with penalties. Under Clause 4 of the Section, there is a specific mention that 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. As pointed out earlier, for the dis-obedience of the orders to be passed under Sections 68(2) & 68(3) of the Act, the Magistrate concerned can issue an order. As per Section 61(4) of the Act, when there is a specific mention that punishment can be imposed only by a Court not inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the First Class, question of saying that the term used "Magistrate of First Class" indicates only the "Executive Magistrate" does not arise at all.
13. Apart from the above, as far as the argument of the learned Counsel for the Petitioners, relying on Sections 54 & 55 of the Act is concerned, Section 54 of the Act deals with removal of encroachment from Wakf property and Section 55 of the Act deals with enforcement of orders made u/s 54 of the Act. As per the said Section, for non-compliance of the orders passed u/s 54 of the Act, the Chief Executive officer may apply to the Sub-Divisional Magistrate. As far as the above Sections 54 & 55 are concerned, they relate to removal of encroachment and enforcement of orders made u/s 54 of the Act and it has got nothing to do with taking possession of the properties or records by a successor in an election conducted. As far as the argument of the learned Counsel for the Petitioners, relying on Tamil Nadu Hindu Religious & Charitable Endowments Act, 1959 and various other similar provisions that under similar circumstances, power is given only to the Executive Magistrate and not to Judicial Magistrate is concerned, if in the opinion of these Petitioners, such power is exercisable only by an Executive Magistrate, the remedy open to them is to challenge the provision u/s 68(2) of the Act. But, as far as these Criminal Original Petitions are concerned, what is under challenge is only a Complaint given by the private Respondents on the ground of jurisdiction. When there is no ambiguity u/s 68(2) of the Act, since the term used therein is "Magistrate of First Class" and when such a classification can only be with reference to "Judicial Magistrate", we are of the view that the term "Magistrate" used u/s 68(2) of the Act is only with reference to "Judicial Magistrate" and not with reference to "Executive Magistrate".
The Reference is answered accordingly.
