Hamza Haji and Kunhimuhammed Haji v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY, THE 12[TH] DAY OF SEPTEMBER 2023/21ST BHADRA, 1945** **CRL.REV.PET NO. 1357 OF 2017** **AGAINST THE ORDER/JUDGMENT DATED 10.08.2017 PASSED BY THE SUB DIVISIONAL MAGISTRATE, TIRUR IN CRIME NO.27/2017 OF VENGARA POLICE STATION** ## **REVISION PETITIONERS/'B' PARTY:** **1 HAMZA HAJI, AGED 63 YEARS, S/O. HASSAN HAJI, SECRETARY, SADANATHU SIDDIQUI VALVAHA SANGHAM, CHERUR, RESIDING AT PULIKKAL HOUSE, CHERUR, POST KANNAMANGALAM, VENGARA, TIRUR TALUK, MALAPPURAM DISTRICT, PIN - 676 304.** - **2 KUNHIMUHAMMED HAJI, S/O. RAYIN HAJI, PULLATT HOUSE, CHERUR, P.O, KANNAMANGALAM, VENGARA, TIRUR TALUK,MALAPPURAM - 676 304.** **BY ADVS. SRI.R.RAMADAS SRI.T.SIVADASAN** ## **RESPONDENTS/STATE AND A PARTY:** - **1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERANKULAM – 31.** - **2 THE SUB DIVISIONAL MAGISTRATE, TIRUR, MALAPPURAM DISTRICT - 676 101.** Crl.R.P. No.1357/2017 : 2 : - **3 SUB INSPECTOR OF POLICE, VENGARA POLICE STATION, VENGARA P.O, MALAPPURAM DISTRICT PIN - 676 304.** - **4 KUTTYALI HAJI, S/O. ABDUL KHADER,KORATH HOUSE, CHERUR, KANNAMANGALAM P.O, VENGARA, TIRUR TALUK, MALAPPURAM DISTRICT - 676 304.** - **5 MUHAMMED ALI, S/O. AVARAN HAJI, CHERUVIL HOUSE, CHERUR, KANNAMANGALAM P.O, VENGARA, TIRUR TALUK, MALAPPURAM DISTRICT, PIN - 676 304.** **BY ADVS. SRI.C.S.HRITHWIK, SENIOR PUBLIC PROSECUTOR SRI.M.KRISHNAKUMAR** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.R.P. No.1357/2017 : 3 : ## **N. NAGARESH, J.** ````````````````````````````````````````````````````````````` ## Crl.R.P. No.1357 of 2017 ````````````````````````````````````````````````````````````` _Dated this the 12[th] day of September, 2023_ ## **O R D E R** ~ ~ ~ ~ ~ ~ The petitioners in this Crl.R.P. are aggrieved by order dated 10.08.2017 passed by the Sub Divisional Magistrate, Tirur in Crime No.27/2017 of Vengara Police Station, registered under Section 145 of the Cr.P.C. 2. The petitioners submit that they are the “B” party and respondents 4 and 5 are the “A” party in the proceedings initiated under Section 145 Cr.PC. by the Sub Divisional Magistrate, Tirur in Crime No.27/2017 of Vengara Police Station. The petitioners state that a Madrasa is situated in a building in Kannamangalam Panchayat situated in 8 Cents of land, administered by SSV Sangam, which is a Society registered under the Societies Registration Act. The Crl.R.P. No.1357/2017 : 4 : petitioners are two office bearers of the Society by virtue of a registered Wakf Deed dated 30.03.1953. The SSV Sangam was conducting Ma-Adanul Uloom Madrasa in the building, which is a Wakf property. The Madrasa was following the syllabus prescribed by the Samastha Kerala Islam Matha Vidyabhyasa Board. 3. From 26.07.2015, certain members of the Sangam disassociated with the Sangam, took their children from the Madrasa run by the SSV Sangam and were admitted in another Madrasa, which was following syllabus prescribed by the Sunni Vidyabhyasa Board. They purchased another piece of property and were conducting classes in a shed constructed in that property. In the midnight of 29.01.2017, certain people belonging to “A” party trespassed into the Madrasa building owned by the Sangam and committed acts of waste. 4. The 1[st] petitioner lodged a complaint to the police on 30.01.2017 for offences under Sections 143, 147, 448, 427 and 149 IPC. The 3[rd] respondent-Sub Inspector of Crl.R.P. No.1357/2017 : 5 : Police took possession of the Madrasa building of the petitioners as directed by the 2[nd] respondent- Sub Divisional Magistrate and initiated proceedings under Section 145 Cr.P.C. 5. The petitioners filed detailed affidavit evidencing their title to and possession of the building and adduced documentary evidence. The Village Officer, Kannamangalam also filed detailed report. The 3[rd] respondent, did not conduct proper investigation into the FIR lodged by the petitioners. 6. The 2[nd] respondent passed final orders in Crime No.27/2017 on 10.08.2017 dropping the proceedings initiated under Section 145 Cr.P.C. holding that there is no threat prevailing to the peace and tranquility. The petitioners contend that the 2[nd] respondent failed to restore possession of the Madrasa building back to the petitioners as required under Section 145(4)(vi) Cr.P.C. The petitioners challenge the order dated 10.08.2017 of the 2[nd] respondent. Crl.R.P. No.1357/2017 : 6 : 7. The counsel for the petitioners argued that when the building was admittedly in the possession of the petitioners, the Sub Divisional Magistrate ought to have restored possession to the petitioners. The petitioners have been conducting Madrasa in the building since the year 1958. It was only in the year 2015 that certain members defected and started a separate Madrasa. 8. The counsel for the petitioners pointed out that the petitioners had produced title documents before the SDM in proof of their title and possession. The reports filed by the Village Officer were also in favour of the petitioners. Section 145(4) Cr.P.C. requires the Sub Divisional Magistrate to peruse statements, receive evidence and decide as to who was in possession of the property. As per the proviso to the Section, the eligible party has to be put in possession. 9. The counsel for the petitioners relied on the judgment of this Court in _**Shameel v. Mohammed Ansari** [2014 (4) KLT 53]_ to contend that the Executive Magistrate will have to conduct an enquiry, he will have to record Crl.R.P. No.1357/2017 : 7 : evidence, peruse the claim statements and he will have to decide who among the parties was in fact in possession on the relevant date. Relying on the judgment in _**Vinod and others v. State of Kerala and others** [2014 (3) KHC 591]_ , the counsel for the petitioners argued that Section 145 authorises the Magistrate to issue a declaratory order in favour of a party that he is entitled to possession until evicted therefrom in due course of law. The 2[nd] respondent has abdicated his powers, contended the counsel for the petitioners. 10. The counsel for the 5[th] respondent pointed out that Section 145 Cr.P.C. will not apply to the facts of the case and it is Section 147 which would come into play. The building in question is admittedly a Madrasa and only Mukthavali has a legal right to hold the property. If the petitioners have any dispute regarding ownership of the property, they have to approach the Wakf Board or Wakf Tribunal, as the case may be. At any rate, the 2[nd] respondent-Sub Divisional Magistrate is not competent to decide the title of the property. Crl.R.P. No.1357/2017 : 8 : 11. On instructions, the Senior Public Prosecutor submitted that in response to a report submitted by the Sub Inspector, the Sub Divisional Magistrate's Court stopped all further proceedings in the case and has given order to both the factions for settling the dispute on the ownership of Madrasa building by approaching civil court. Now, the old southern block Madrasa building is closed and at present, no law and order issue is prevailing. The Public Prosecutor, however, submitted that if the old closed Madrasa building is handed over to any of the factions, it will cause rivalry among these two groups and serious law and order problem may arise. It will affect the peace and harmony of the locality. 12. I have heard the learned counsel for the petitioners, the learned Public Prosecutor representing respondents 1 to 3 and the learned counsel appearing for respondents 4 and 5. 13. By proceedings dated 10.08.2017 in Crime No.27/2017, the Sub Divisional Magistrate, Tirur considered the issues involved in the disputes between two groups Crl.R.P. No.1357/2017 : 9 : regarding the possession and management of Ma-Adanul Uloom Madrasa situated in Kannamangalam Village of Tirurangadi Taluk. It is claimed that the Madrasa was controlled by one SSV Sangam and certain members of the rival group forcibly entered into the building and claimed control thereof. 14. Based on the reports received, the Sub Divisional Magistrate, Tirur, convened a preliminary meeting of the members of both the groups. Both sides advanced their own arguments and no consensus could be arrived at in the meeting. The Sub Inspector of Police informed that the Madrasa building was closed to avoid further untoward law and order issues. 15. Taking into consideration the materials available and after hearing the parties, the Sub Divisional Magistrate came to a conclusion that there exists no serious law and order issues and breach of peace in the locality which warrant action under Section 145/146 Cr.P.C. Section 145 proceedings were therefore dropped and parties were Crl.R.P. No.1357/2017 : 10 : advised to approach competent civil court to settle the dispute regarding the possession and title to the Madrasa building. 16. As per the report made by the Station House Officer, the old southern Block of Madrasa building is closed now and at present no law and order issue is prevailing. The SHO has further stated that if the closed Madrasa building is handed over to any of the factions, it will cause rivalry among the two groups and serious law and order problem may arise. If handing over possession of the building to one of the parties would create law and order problem, then the Sub Divisional Magistrate has the discretion not to restore the building to any of the parties and to advise the rival factions to approach the competent civil court / forum. In the afore circumstances of the case, I find no merit in the Crl.R.P. filed by the petitioners and the same is therefore dismissed. Sd/- **N. NAGARESH, JUDGE** aks/11.09.2023