The Allahabad High Court while rejecting an application held that the protection of Section 197 of CrPC is not available to the Waqf Board for prosecuting a mutawalli. In this section, the permission of the government is necessary before prosecuting public servants.
The Single-Judge Bench of Justice Arun Kumar Singh Deshwal passed this order while hearing an application filed by Abu Talib Husain and Another.
The 482 Cr.P.C. application has been filed to quash the entire proceedings of case under Sections-323, 504, 506, 354 I.P.C, Police Station-Kotwali Nagar, District- Saharanpur as well as summoning order dated 3.9.2022 passed by the Additional Chief Judicial Magistrate, Saharanpur and is pending before the first Additional Civil Judge (Jr Div)/Judicial Magistrate, Saharanpur.
Contention of the counsel for the applicants is that the impugned FIR was lodged and charge sheet was filed after conducting investigation on which cognizance was also taken by the Court but as per Section-101 of Wakf Act, 1995, mutawalli of waqf would be deemed to be a public servant within the meaning of Section-21 of Indian Penal Code, 1860. Applicant no1 is mutawalli of waqf Karbala, Nai Basti, Behat Road, Saharanpur, therefore, as per Section-197 Cr.P.C, cognizance is bad by the Court because no sanction from appropriate Government was taken before taking such cognizance.
It is further submitted that applicant no 2 is father of applicant no1 and also assisted the applicant no 1 in discharge of public duty.
On the other hand, AGA has opposed the above submission and submitted that Section-101 of the Act, 1995 is a deeming provision for the discharge of duty and Section-197 Cr.P.C is applicable only on public servant who cannot be removed without sanction of the State Government whereas for the removal of applicant no 1, sanction of State Government is not required and Section-197 Cr.P.C is not applicable in the case.
The Court observed that,
Considering the submission of the counsel for the applicant as well as AGA for the State, the sole question arises if the mutawalli was deemed to be public servant under Section-101 of the Act, 1995, then merely because he is deemed to be public servant is also entitled to protection under Section-197 CrPC.
From perusal of the above section of the Act, 1995, it appears that not only mutawalli of waqf but every member of Managing Committee of waqf are also deemed to be a public servant within the meaning of Section-21 IPC. But despite the above deeming provision mutawalli can be removed by the waqf board as per Section-64 of the Act, 1995.
For applicability of Section-197 Cr.P.C, following three conditions must be satisfied: (a) accused is 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) 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, for applicability of Section-197 Cr.P.C even for the person who is deemed to be a servant under any statute other than IPC, he must be removable by or with the sanction of Central or the State Government.
The Apex Court in the case of Manish Trivedi Vs State of Rajasthan reported in (2014) 14 SCC 420 observed that if any act creates a legal fiction to a particular category of employee by adopting the condition of Section-197 Cr.P.C then those employees are entitled to get the protection of Section-197 CrPC.
In the above mentioned judgement, Section-87 of Rajasthan Municipalities Act, 1959 created legal fiction that members of municipal board will be deemed to be public servant as per Section 21 IPC but the word ‘Government’ mentioned in Section 197 Crpc was deemed to be substituted by municipal board and for that reason member of municipal board Rajasthan was declared as public servant for the purpose of Section 197 CrPC.
“In the 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 Cr.P.C, the word ‘Government’ was not replaced by waqf board, therefore, despite the fact that mutawalli was declared to be public servant by Section 101 of the Act, 1995. All conditions for applicability of Section-197 Cr.P.C are not fulfilled, therefore mutawalli of waqf board despite being deemed to be a public servant are not entitled to protection under Section 197 CrPC”, the Court further observed while rejecting the application.