Prosecution of the accused in a criminal court
A- While filing a petition under Section 482 of Cr. P.C.for Quashing the proceedings in the criminal court as well as the Waqf Tribunal for lack of Jurisdiction on account of the legal ba under Section 52-A of the waqf Act 2013, unless filed by waqf board of a Govt. officer.
i- Can we also file in the High Court a writ petition under Articles 226, 227 and 21 for declaring the impugned entry at serial no.17 on page 3 in the A.P. Gazette No. 27-C, Dtd. 08-07-1982 as having been misapplied to a private property based on a report by the Survey Commissioner of waqfs issued in contravention of the prescribed procedure under section (4) of the waqf act, making it invalid in law and declaring the publication in the official Gazette by the board invalid as it too was published in gross contravention of the established internal procedure as well as that under section 5 (2) of the Waqf Act. And seek a direction to the waqf board to issue Errata or NOC as applicable within 30 days of the order.
ii- Can we seek a direction from the High Court to Waqf Tribunal to vacate its ad interim injunction (made absolute in 2016) and close O.S. 114 of 2013 by declaring the applicant's property a private property since the impugned Gazette Notification itself was set aside.
iii- Can we seek a direction from the High court to the concerned officials of the GHMC to issue a valid building permit within 30 days for the revised building plans to be submitted by the applicants together with the payments of requisite fees if the same is otherwise in order. This becomes necessary for our re starting of construction, since the building constructed until 28-08-2013 was ordered to be demolished by the GHMC.The Hon’ble High Court issued an immediate stay order against the demolition on 1/12/2013 in W.P. S.R. No.18924 of 2013. Following the arguments and counters thereto from either side, the Hon’ble High Court was pleased to dispose off the writ petition by an Order dated 3/12/2013 in W.P. No. 34746 of 2013 on the file of Hon’ble High Court restraining the GHMC from demolition and the writ petitioner from constructing any further and directed her to reply to said notices from GHMC by 10/12/2013 and apply for NOC from HCC of HMDA as demanded by GHMC. We have complied with both directions.
B- Can we also seek quashing the FIR on account of the Condition Precedent or Sine Qua Non being absent of our property first being proven in the Tribunal or High Court as a Waqf property with religious sentiments attached to it, pending judicial decision. Because only if proven as a Waqf the construction activities of the accused can attract SECTIONS 34,120 A,295,295 A and 297 of Cr. P.C. as otherwise it will be like "Putting the Cart before the Horse". Please mention the relevant laws/sections or Maxims in such a case.
Asked 6 years ago in Criminal Law
Religion: Muslim
"Currus bovem trahit" Translation: "The wagon drags the ox." or It is a mistake to deal with minor considerations before getting down to the central issue confronting anyone; as we are warned: "Don't put the cart before the horse (ox)." When planning an activity, we must keep first things first.
It is not the Waqf board which has passed an interim order, but it is the Waqf Tribunal that has passed the interim injunction against our construction (since made absolute) nor it is the Waqf Board which has filed a suit for the recovery of a waqf property from an encroacher. It is a question of deliberate and malafide misapplication of an old Gazette Notification over a private property or wrongful claim by a person who has no locus standi in the matter hence our plea of non jurisdiction of the Waqf Tribunal and dismissal or quashing of the Demolition case against us by High court, even before the Waqf Tribunal finally passes the order that our pro pert was waqf. As long as this Sine Qua Non is not present in the criminal case, FIR and charge sheet following it cannot sustain since the charges against the accused cannot be framed or the guilty punished under those sections. As it is the remedy of bringing criminal charges against the accused is always available to the Waqf Board, even after the present case is quashed now for want of jurisdiction, locus standi, by the high court. And if in case the High court declares the impugned entry in the notified waqf gazette as invalid then there is no case for anybody but if however the Waqf board challenges the orders of the High Court in the Supreme Court and it reverses the decision of the High Court the Waqf board can not only file for eviction of the waqf property but can also revive the criminal charges against the accused. But supposing the accused face the trial and are found guilty and punished now and the High Court / Supreme Court hold the gazette notification (the impugned entry with regard to the private property) invalid and no applicable on grounds of it being issued in contravention of law, the accused have no remedy to prove themselves not guilty or even if they have one, what about the losses they suffer when their building is incomplete, defamation they face and the jail terms they complete?
Asked 6 years ago
