Debabrata Mookerjee, J.
1. These two petitioners were! convicted by a Magistrate at Barasat under Section 57(1)(a) of the Bengal Wakf Act, 1934 and sentenced to pay a fine of Rs. 60/- each, in default to suffer rigorous imprisonment for one month each. Upon appeal the convictions were upheld but the sentence was reduced in each case to a fine of Rs. 30/-, in default to suffer simple imprisonment for three weeks by the Sessions Judge, 24 Parganas.
2. Briefly stated the case against the petitioners is that they being Mutawallis of a certain Wakf estate failed to comply with the directions issued by the Wakf Commissioner for enrolment of the estate under the Bengal Wakf Act.
3. It is contended before me on behalf of the petitioners that the convictions of the accused-petitioners are not maintainable in view of the provisions contained in the Bengal Wakf Act itself. There is hardly any dispute as respects the fact that the petitioners failed to comply with certain directions issued to them as regards the enrolment of the Wakf estate. Section 57(1)(a) of that Act! provides that if a mutawalli fails to apply for enrolment he shall, unless he satisfies the Court that there was reasonable cause for his failure, be punishable with fine which may extend to five hundred rupees. The word 'enrolment' is defined in Section 6(5) of the Act as meaning the enrolment of a wakf under Section 44. Section 44 provides that all wakfs existing at or created after the commencement of this Act shall be enrolled at the office of the Commissioner.
Application for enrolment might be made by the mutawalli or any person interested may apply for such enrolment. The application is required to set out certain particulars in such form and manner as may be prescribed. Sub-section (6) of Section 44 says that in the case of 'wakfs' created before the date on which this section comes into force, application for enrolment shall be made within six months from that date and in the case of wakfs created after that date within six months from the date of the creation of the wakf. The proviso attached to Sub-section (6) does not fall to be considered. Sections 6 and 57 of the Act appear to have been brought into operation on the 14th of December, 1934 while Section 44 became operative on the 10th of February, 1936. There can, thus, be no doubt that these sections were in operation at the date of the commission of the offence.
4. Sub-section (6) of Section 44 makes it plain that it provides for two classes of cases, - first, wakfs in existence at the date of the commencement of the section and secondly, wakfs which may be created after the section was brought into force. In either case it is provided that the application has to be made within the time limit of six months, in one case from the date of the commencement of the section and in the other case from the date of the creation of the wakf.
5. Turning to the facts of the case for a moment, it is reasonably clear that this wakf estate had been in existence for a long time prior to the commencement of the section. Quite obviously there were other mutawallis who might have been liable to comply with the provisions of the Act; but the present mutawallis, who were new ones, could not possibly have complied with the directions contained in Sub-section (6) of Section 44. This wakf has been in existence since February, 1924 taut the present petitioners did not come into the picture until about 1938. So the person liable, to apply for enrolment of the wakf is the person who was the mutawalli at relevant time. The other case contemplated by Sub-section (6) of Section 44, namely, the wakf being created at any time within six months after the commencement of the section does not apply either to the facts of this case since the present petitioners were not mutawallis during the period of six months immediately after the creation of the wakf.
6. In such circumstance, I do not think that the petitioners can possibly be convicted under Section 57(1)(a) of the Bengal Wakf Act. It is to be recalled that they have been convicted for failure to enrol the wakf and enrolment is defined as enrolment within the meaning of Section 44, Sub-section (6) The facts precluded the possibility of the petitioners making an application for enrolment within the time limited by that sub-section,
7. The real gravamen of the charge seems to be that these petitioners failed to carry out the directions of the Wakf Commissioners. It appears that certain directions were issued by the Commissioner requiring the present petitioners to apply for enrolment. These petitioners failed to comply with the directions and they were called upon to show cause why they were not be prosecuted. The real offence, which the petitioners may be said to have committed, was this failure to comply with the directions. Section 46 of the Act provides that the Commissioner on his own motion may direct a mutawalli to apply for enrolment of the wakf or to apply any information regarding the wakf.
If a mutawalli fails to comply with these directions he certainly makes himself liable; but he becomes liable not under Section 57(1)(a) but under Section 57(1)(f) of the Act for failing 'to carry out the directions of the Board or the Commissioner or a person authorized by the Board or the Commissioner'. The petitioners have, therefore, in my view, been prosecuted on a misapprehension. The offence, if any, was one under Section 57(1)(f); but the charge preferred is that the petitioners committed an offence under Section 57(1)(a). This latter charge could not possibly stand in the circumstances of this case.
8. A question now arises whether this Court should convert the conviction for an offence under Section 57(1)(a) to one under Section 57(1)(f). I am not prepared to do so In revision inasmuch as it could reasonably be said on behalf of the petitioners that they were misled completely in their defence by being told that they were charged with a different offence. Surely the question of prejudice does arise in a case of this kind, which prevents the charge from being converted to one under Section 57(1)(f).
9. In the result, this petition succeeds. The conviction and sentences of the petitioners under Section 57(1)(a) of the Bengal Wakf Act are set aside.
10. The Rule is accordingly made absolute. The fine, if paid, will be refunded.