KERALA STATE WAQF BOARD v. T.M. Abdul Salam and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.UBAID** **MONDAY ,THE 03RD DAY OF DECEMBER 2018 / 12TH AGRAHAYANA, 1940** **OP(Crl.).No. 359 of 2018** **AGAINST THE ORDER/JUDGMENT IN CMP 2222/2016 of COURT OF ENQUIRY COMMNR. & SPL. JUDGE, VIGILANCE, EKM AT MUVATTUPUZHA** ## **PETITIONER:** **KERALA STATE WAQF BOARD V.I.P.ROAD, KALOOR, KOCHI 17, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER-INCHARGE, MR.U.ABDUL JALEEL.** **BY ADVS. SRI.BABU KARUKAPADATH SMT.AMRIN FATHIMA SMT.M.A.VAHEEDA BABU SMT.V.R.LAKSHMI SRI.E.M.ABDUL KHADER SRI.K.M.FAISAL (KALAMASSERY) SRI.MITHUN BABY JOHN SRI.P.U.VINOD KUMAR SRI.RAHUL ROY** ## **RESPONDENTS:** **1 T.M.ABDUL SALAM AGED 53 YEARS, S/O.MUHAMMED, THAIKOOTTATHIL HOUSE,THRIKKAKKARA P.O., KOCHI - 682 021. 2 B.M.JAMAL FORMER CHIEF EXECUTIVE OFFICER, KERALA STATE WAQF BOARD,KALOOR, KOCHI, NOW RESIDING AT HOUSE NO.S268, GREATER KAILASH-1, NEW DELHI - 110 048.** **OP(Crl.).No. 359 of 2018** **-2-** - **3 SAIDALIKUTTY (PREVIOUS CHAIRMAN), KERALA STATE WAQF BOARD, KALOOR, KOCHI - 682 017.** - **4 SAINUDHEEN MEMBER, KERALA STATE WAQF BOARD,KALOOR, KOCHI - 682 017.** - **5 MAYIN HAJI MEMBER,KERALA STATE WAQF BOARD, KALOOR, KOCHI - 682 017.** - **6 STATE OF KERALA REPRESENTED BY DY.S.P.VACB, ERNAKULAM, KATHRIKADAVU,KALOOR P.O., KOCHI - 682 017.** **BY ADVS. SRI.K.B.ARUNKUMAR FOR R1 GOVERNMENT PLEADER SRI.T.U.ZIYAD FOR R1** ## **OTHER PRESENT:** ## **SRI A RAJESH-SPL PUBLIC PROSECUTOR-VACB** **THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 03.12.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **OP(Crl.).No. 359 of 2018** **-3-** ## **J U D G M E N T** **The first respondent herein is the complainant in a complaint brought before the Special Court (Vigilance), Muvattupuzha, alleging misconduct against some former office bearers/members of the Kerala State Waqf Board under the provisions of the Prevention of Corruption Act, 1988(for short “the PC Act”). The said complaint was forwarded to the Ernakulam unit of the Vigilance and Anti Corruption Bureau (VACB) for preliminary enquiry. After such enquiry, the VACB submitted a report in court. As regards the allegations of criminal misconduct raised by the first respondent, the finding of the VACB in the report of enquiry is that such allegations are baseless, and that there is no scope for a prosecution under the PC Act. However, the Inspector, who conducted such enquiry, recommended** ## **OP(Crl.).No. 359 of 2018** **-4-** **disciplinary action against the former Chief Executive Officer of the Waqf Board. Thus, practically, the report of preliminary enquiry is in favour of the persons arraigned as accused in the complaint. The said report is now being considered by the learned trial Judge. It appears that the first respondent has also filed objection to the report of enquiry. After the VACB submitted report of enquiry, the Kerala State Waqf Board, represented by its present Chief Executive Officer in charge, filed an application before the learned trial Judge for permission to participate in the proceedings as regards the report of enquiry. On the finding that a third party cannot intervene in the functions of the court at this stage, the learned trial Judge rejected the said petition filed as M.P. No. 673 of 2018. Challenging the said order dated 06.07.2018, the Waqf Board has approached this Court under Article 227 of the** **OP(Crl.).No. 359 of 2018** **-5-** ## **Constitution of India.** **2. The matter is at the very preliminary stage. The trial court is yet to take a decision on the report of preliminary enquiry filed by the VACB. It is for the trial court now to take a decision judicially whether the report should be accepted as such, and the complaint should be rejected. On the other hand, if the court feels the necessity of investigation, the court can direct the complainant to produce the required materials as held by this Court in** _**Manoj Abraham**_ **v.** _**Chandrasekharan Nair**_ **(2018 (1) KLT 174). If the court feels the necessity of a direction to register a crime, the court can, with necessary findings, forward the complaint to the VACB under Section 156(3) Cr.P.C., or else, if the court feels the necessity of its own enquiry, the court can proceed under Section 200 Cr.P.C. in view of the protest made by the complainant. These are all the** **OP(Crl.).No. 359 of 2018** **-6-** **different options now possible for the trial court. The limited question is whether the Kerala State Waqf Board has the right or** _**locus standi**_ **to intervene in the proceedings at this stage.** **3. First of all, let me examine whether the petitioner can seek relief under Article 227 of the Constitution of India. The question of this Court, exercising jurisdiction under Article 227 of the Constitution of India, comes only in cases where there is some sort of jurisdictional error or jurisdictional irregularity. In the instant case, there is no such instance of any sort of jurisdictional error or irregularity. The complaint is now before the trial court. In view of the direction of the Honourable Supreme Court in** _**Lalithakumari**_ **'s case, the trial court directed a preliminary enquiry. The report of enquiry is now before the court, and it is being considered. Now different options are open to the trial court to** **OP(Crl.).No. 359 of 2018** **-7-** **proceed according to law. The trial court is yet to take a decision, or to form a judicious opinion as to what shall be done on the report of enquiry and the complaint. I do not find any instance of jurisdictional error or irregularity for correction under Article 227 of the Constitution of India. On this ground itself, this petition brought under Article 227 of the Constitution of India is liable to be dismissed. The petitioner will have to wait for proper remedies and procedure under the Code of Criminal Procedure.** **4. Now let me see whether the petitioner has right of audience at this stage. The learned counsel for the petitioner cited some decisions of the Honourable Supreme Court. I need not refer to those decisions because those are all decisions relating to the right or** _**locus standi**_ **to set the criminal law in motion, or to intervene in judicial proceedings by way of revision or appeal** **OP(Crl.).No. 359 of 2018** **-8-** **challenging the order of conviction or acquittal. Here there is no such instance. Here the issue is very very short as to whether any third party can intervene in a matter in between the complainant and the court. When a complaint is before the court, or when the report of enquiry is also before the court, it is the exclusive domain of the court to decide on the complaint or the report for necessary further action. Even the accused does not have the right of participation at this stage. The petitioner, as a third party, can pursue appropriate remedies under the law if the petitioner is aggrieved, only when the court has taken a decision on the compliant and the report before it. This stage would be too premature for the petitioner to seek orders or bring actions. Let the court take a decision on the complaint before it, and the report of enquiry. Let the trial court choose one of the different options** **OP(Crl.).No. 359 of 2018** **-9-** ## **possible under the law.** **5. The petitioner's grievance appears to be that if the trial court proceeds for enquiry without hearing the Waqf Board, the findings made by the court may affect the functions of the Waqf Board. I do not think that the learned trial Judge will mechanically act on the complaint or the report. No doubt, if the court requires any material for the purpose of enquiry or examination, the court can very well call for the required documents or materials even from the Waqf Board under Section 91 Cr.P.C.. I do not find the possibility of the enquiry prejudicially or adversely affecting the Waqf Board at this stage. It is well settled that at the stage of enquiry under Section 200 Cr.P.C. or under Section 202 Cr.P.C, even the accused has no right of audience. The court is yet to take a decision as to how to proceed on the complaint. That must be the** **OP(Crl.).No. 359 of 2018** **-10-** **exclusive jurisdiction of the trial court, to which third parties or even this Court cannot intervene under the Code of Criminal Procedure or under Article 227 of the Constitution of India. Let the trial court take its own decision. The allegations in the complaint are individually against some former members of the Board. The VACB has already found that the allegations are baseless. Now it is for the court to examine the relevant records and details including the registers that can be summoned under Section 91 Cr.P.C. to decide whether there is scope to proceed further on the complaint and the report. Let the said judicial function be discharged by the trial court without being intervened or influenced by any third party or even this Court. I find that the petitioner's application was rightly rejected by the learned trial Judge.** **OP(Crl.).No. 359 of 2018** **-11-** **Hence, this original petition is** **dismissed.** **Sd/P.UBAID** ds 03.12.2018 **JUDGE** **OP(Crl.).No. 359 of 2018** **-12-** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE COMPLIANT, C.M.P.NO.2222/2016 FILED BEFORE THE HON'BLE ENQUIRY COMMISSIONER & SPECIAL JUDGE (VIGILANCE), MUVATTUPUZHA. EXHIBIT P2 A TRUE COPY OF THE QUICK VERIFICATION REPORT DATED 24/08/2017 SUBMITTED BY OFFICE OF THE DY.S.P.VACB, ERNAKULAM. EXHIBIT P3 A TRUE COPY OF M.P.NO.673/2018 IN C.M.P.NO.2222/2016 ON THE FILE OF THE HON'BLE ENQUIRY COMMISSIONER & SPECIAL JUDGE (VIGILANCE), MUVATTUPUZHA FILED BY THE PETITIONER FOR PERMITTING IT TO PARTICIPATE IN THE PROCEEDINGS OR/AND TO HER IT.** **EXHIBIT P4 A TRUE COPY OF THE ORDER DATED 06/07/2018 IN M.P.NO.673/2018 IN C.M.P.NO.2222/2016 OF THE HON'BLE ENQUIRY COMMISSIONER & SPECIAL JUDGE (VIGILANCE), MUVATTUPUZHA.** ## **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R1 A** THE TRUE COPY OF THE QUICK VERIFICATION REPORT DATED 24.08.2017 WITH STATEMENTS PREPARED BY VACB, ERNAKULAM UNIT. **EXHIBIT R1 B** THE TRUE COPY OF THE OBJECTION DATED 9.2.2018 IN CMP NO. IN CMP NO. 2222/2016 OF THE VIGILANCE COURT AT MUVATTUPUZHA. **EXHIBIT R1 C** THE TRUE COPY OF THE REPORT DATED 25.6.2012 PREPARED BY CEO OF KERALA WAQF BOARD.