Bombay High Court
Syed Mukhtar Syed Fayyaz vs The State Of Mah And Ors on 31 August, 2016
Bench: V.K. Jadhav
1 CRI WP 534.2007.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 534 OF 2007
SYED MUKHTAR SYED FAYYAZ
age 40 yrs, Occ. Business,
R/o MIDC, Opp. Sipta Coated Steel
Factory, Cidco, Nanded. Petitioner.
VERSUS
1. The State of Maharashtra,
Through Police Station,
Gramin Nanded.
2. Sufi Begum w/o Mohd Ayub,
age 45 yrs, Occ. Household,
R/o Itwara, Nanded.
3. Mohd. Akheel s/o Mohd Ayub,
age 25 yrs, Occ. Business,
R/o Itwara, Nanded.
4. Mohd. Khaleel S/o Mohd. Ayub,
age 25 yrs, Occ. Business,
R/o Itwara, Nanded. Respondents.
...
Advocate for Petitioner : Mr Uday Dalvi
APP for Respondents: Mr P G Borade
Advocate for Respondents 2-4 : Mr P P Mandlik & Amol
Gandhi
...
CORAM : V.K. JADHAV, J.
Dated: August 31, 2016
...
ORAL JUDGMENT :-
1. Being aggrieved by the common order dated
5.7.2007 passed by the Judicial Magistrate First Class,
2 CRI WP 534.2007.odt
Nanded below Exh.1 in Misc.Criminal Application
No.61/2007 and 68/2007 and the order dated
27.8.2007 passed by the Sessions Judge, Nanded
whereby Criminal Revision Petition No.94/2007 is
allowed and Criminal Revision No.99/2007 preferred by
the present petitioner dismissed, the petitioner-original
complainant has approached this Court by filing present
Criminal Writ Petition.
2. Brief facts, giving rise to the present Criminal Writ
Petition, are as under :-
Petitioner-original complainant had filed an
application bearing Criminal Application No.211/2007
before the learned Chief Judicial Magistrate, Nanded
seeking directions to the Police Station, Nanded to
register the crime against accused nos. 1 to 3 (present
respondents) and investigate into the matter as per the
provisions of Section 156 (3) of Code of Criminal
Procedure. The learned 3rd Judicial Magistrate First
Class, Nanded by order dated 9.3.2007 directed Rural
Police Station, Nanded to make an investigation under
Section 156 (3) of Code of Criminal Procedure by
3 CRI WP 534.2007.odt
treating the complaint to be the F.I.R. and submit final
report. Accordingly Crime bearing No. 75 of 2007 came
to be registered at Rural Police Station, Nanded for the
offences punishable under section 420, 467, 468, 471
r/w 34 of Indian Penal Code. After due investigation,
Rural Police Station, Nanded submitted charge-sheet
before the Court and thus case is registered as R.C.C
No. 394 of 2010. Said case is still pending before the
Chief Judicial Magistrate, Nanded.
3. During the course of investigation, the
investigating officer while investigating said Crime No.
75 of 2007 seized the machinery I.e two boring
machines from the possession of deceased father of
respondents no. 2 to 4 herein. The investigating officer
seized one bor machine and, so far as another bor
machine is concerned, sealed it and kept the same in
possession of deceased father of respondents no. 2 to 4
herein. The petitioner-complainant when the crime was
under investigation submitted an application before the
Judicial Magistrate First Class, Nanded for the
temporary custody of the Muddemal Property i.e.
4 CRI WP 534.2007.odt
aforesaid boring machines under the provisions of
Section 457 (1) of the Code of Criminal Procedure. Said
application is registered as Misc. Cri.Appln No.61/2007.
Furthermore, the legal heirs of deceased Mohd.Ayyub
(deceased father of respondents No.2 to 4 herein) also
filed an application bearing Misc.Cri.Appln No.68/2007
seeking custody of the aforesaid Muddemal Property
pending investigation of the Crime. The learned Judge
of the Trial Court, after hearing arguments of the both
the parties, by common order dated 5.7.2007 passed
below Exh.1 in Misc Appln No.61/2007 and Cri.
M.A.No.68/2007 rejected both the applications. Being
aggrieved by the same, the legal heirs of said Mohd.
Ayyub preferred Criminal Revision Application
No.94/2007, whereas present petitioner-original
complainant has preferred Criminal Revision
Application No.99/2007. The learned Sessions Judge,
Nanded by impugned order dated 27.8.2007 allowed the
Revision petition No. 94/2007 filed by the legal heirs of
deceased Mohd. Ayyub, however, Criminal Revision
Application No.99/2007 preferred by the petitioner-
complainant came to be dismissed. The learned
5 CRI WP 534.2007.odt
Sessions Judge, Nanded has further directed that,
interim custody of the both the boring machines seized
in Crime No.75/2007 by Police Station, Cidco Gramin
be given to the revision petitioners in Criminal Revision
Petition No.94/2007 on furnishing a personal bond and
security bond with certain directions. Being aggrieved
by the same, the petitioner/original complainant has
filed present Criminal Writ Petition.
4. Initially, interim relief was granted, however, this
Court, while issuing Rule by order dated 17.7.2008
vacated the said interim relief. Since, then, the
respondents No.2 to 4 herein are in possession of said
two boring machines.
5. I do not find any propriety in deciding the
applications of the parties to this writ petition after
lapse of more than nine years, when said applications
came to be filed under the provisions of Section 457 (1)
of Code of Criminal Procedure pending investigation of
the Crime.
6 CRI WP 534.2007.odt
6. The learned counsel for the petitioner submits
that, RCC No.394/2010 is still pending before the Trial
Court for trial. As per the provisions of Section 452 (1)
of Code of Criminal Procedure, when an inquiry or trial
in any Criminal Court is concluded, the Court may
make such order as it thinks fit for the disposal, by
destruction, confiscation or delivery to any person
claiming to be entitled to possession thereof or
otherwise, of any property or document produced before
it or in its custody, or regarding which any offence
appears to have been committed, or which has been
used for the commission of any offence.
7. So, in view of the above, at the conclusion of the
trial, the learned Magistrate may take an appropriate
decision on merit regarding the disposal of the said
muddemal property boring machines. Needless to say
that, observations made by the learned Sessions Judge,
Nanded in the aforesaid revision petitions are restricted
and to the extent of considering the application of the
parties under the provisions of section 457 (1) of Code of
Criminal Procedure. This writ petition can be disposed
7 CRI WP 534.2007.odt
of by directing the Magistrate to dispose of the Criminal
Case RCC No.394/2010, as expeditiously as possible,
preferably within a period of FOUR MONTHS from the
date of appearance of the parties before it. It would be
appropriate if the parties appear before the Court on
19.9.2016. Order accordingly. Writ Petition is disposed
of. Rule is accordingly made absolute in above terms.
ig sd/-
( V.K. JADHAV, J. )
...
aaa/-
