Mutawalli Of Wakf Board Not Entitled To Protection U/s. 197 CrPC Though Deemed Public Servant: Allahabad HC

It is pertinent to note that Section 197 CrPC provides a provision for Prosecution of Judges and public servants. For applicability of the Section, three conditions must be met with: (a) that accused must be a public servant; (b) that the public servant can be removed from the post by or with the sanction either of Central or the State Government as the case may be; (c) that the act giving rise to the alleged offence had been committed by the public servant in the actual or purported discharge of his duty.

Therefore, noting the same, a bench of Justice Arun Kumar Singh Deshwal observed, “In the present case, though by a deeming provision of Section-101 of the Act, 1995 mutawalli was declared as public servant but to satisfy the second condition of Section-197 CrPC, the word 'Government' was not replaced by wakf board, therefore, despite the fact that mutawalli was declared to be public servant by Section- 101 of the Act, 1995. All condition for applicability of Section-197 CrPC are not fulfilled, therefore mutawalli of wakf board despite being deemed to be a public servant are not entitled to protection under Section197 CrPC”.

Advocate Ashfaq Ahmed Ansari appeared for the applicant.

In the matter, an application was filed under 482 Cr.P.C. to quash the entire proceedings of for the offences under Sections-323, 504, 506, 354 I.P.C., as well as a summoning order dated September 3, 2022 passed by Additional Chief Judicial Magistrate, Saharanpur and is pending before the learned Ist Additional Civil Judge (Jr. Div)/Judicial Magistrate, Saharanpur.

It was the contention of the counsel appearing for the applicants that the impugned FIR was lodged and charge sheet was filed after conducting an investigation on which cognizance was also taken by the Court. But as per Section-101 of the Wakf Act, 1995, mutawalli of wakf would be deemed to be a public servant within the meaning of Section-21 of Indian Penal Code, 1860.

After perusing Section 101 of the Act, 1995, the bench also noted that not only mutawalli of wakf but every member of Managing Committee of wakf are also deemed to be a public servant within the meaning of Section-21 IPC. However, a mutawalli can still be removed by the wakf board as per Section 64 of the Act, 1995

Accordingly, the bench rejected the plea.

Cause Title: Abu Talib Husain And Another v State of U.P. and Another [Neutral Citation No. - 2023:AHC:168365]