Bombay High Court
Mohd Khaled Mohd Taher vs The State Of Mah And Ors on 8 December, 2016
Bench: V.K. Jadhav
1
908 CRI. WRIT PETITION.829 OF 2009.odt
THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
CRIMINAL WRIT PETITION NO. 829 OF 2009
Mohd. Khaled S/o Mohd Taher,
Age: 57 yrs, Occ. Business and Mutawalli,
R/o. Near Old Power House, M. K. Showroom,
Parbhani, Tq. & Dist. Parbhani. ... PETITIONER
V E R S U S
1]
The State of Maharashtra,
through Police Inspector,
Police Station Nanalpeth,
Parbhani, Dist. Parbhani.
2] The Superintendent of Police,
District Parbhani.
3] Shri. Faiyaz Baig S/o Ahmedulla Baig,
Age: 60 yrs, Occ. A.S.I. Police Station
Nanalpeth Parbhani, Tq & Dist. Parbhani,
At present R/o. Yusufiya Colony, Parbhani.
4] Shaikh Naseeb S/o Abdul Majeed,
Aged: 77 yrs. Occ.
R/o. Near Central Jail Road, Parbhani,
Tq. & Dist. Parbhani.
5] Shaikh Majeed alias Babu S/o Shaikh Naseeb,
Age: 41 yrs, Occ. -
R/o. as above.
6] Shaikh Mazhar S/o Shaikh Naseeb,
Age: 31 yrs, Occ. And R/o. as above.
7] Shaikh Mujahed S/o Shaikh Naseeb,
Age: 29 yrs, Occ. And R/o. as above.
::: Uploaded on - 13/12/2016 ::: Downloaded on - 14/12/2016 00:25:27 :::
2
908 CRI. WRIT PETITION.829 OF 2009.odt
8] Shaikh Anwar S/o Shaikh Naseeb,
Age: 26 yrs, Occ. & R/o. as above.
9] Shaikh Azhar S/o Shaikh Naseeb,
Age: 23 yrs, Occ. & R/o. as above.
10] Shaikh Taher S/o Shaikh Imam @ Nizam,
Age: 41 years, Occ. & R/o. as above.
11] Shaikh Rauf S/o Shaikh Hakan,
Age: 27 years, Occ. & R/o. as above.
12] Haleemabee W/o Shaikh Naseeb,
Age: 61 years, Occ. Household,
R/o. as above.
13] Parveeen Shaikh W/o Shaikh Majeed,
Age: 36 years, Occ. Household,
R/o. as above.
14] Shama Shaikh W/o Shaikh Mazhar,
Age: 31 years, Occ. Household,
R/o. as above.
15] Arefa w/o Shaikh Mujaheed,
Age: 26 years, Occ. Household,
R/o. as above.
16] Salma w/o Shaikh Anwar,
Age: 21 years, Occ. Household,
R/o. as above. ... RESPONDENTS
...
Mr. M. S. Choudhari, Advocate for the Petitioner.
Mr. S. W. Munde, APP for Respondent Nos.1 and 2.
...
CORAM : V. K. JADHAV, J.
DATE : 08th December, 2016.
908 CRI. WRIT PETITION.829 OF 2009.odt
ORAL JUDGMENT:
. Being aggrieved by the order passed by the learned Chief
Judicial Magistrate, Parbhani dated 9th April, 2008, below Exhibit - 1
in R.C.C. No.507 of 2006 and the judgment and order passed by the
learned Additional Sessions Judge, Parbhani dated 16th July, 2009, in
Criminal Revision Application No.52 of 2008 thereby confirmed the
order passed by the learned Magistrate as aforesaid, the original
Complainant has approached to this Court by filing the present
criminal writ petition.
2 Brief facts giving rise to the present criminal writ petition
are as follows:
a. The Petitioner / original Complainant has filed a private
complaint bearing R.C.C. No.507 of 2006 before the
Chief Judicial Magistrate, Parbhani against the
Respondents for having committed the offence
punishable under Sections 448, 457, 147, 148 and 380
read with 149 of the Indian Penal Code. It has stated
in the complaint that the father of Complainant is the
owner and possession of land Survey No.634 situated
908 CRI. WRIT PETITION.829 OF 2009.odt
within the Municipal Limits, Parbhani. There is one
Dargah of late Sher Ali Baba in the said land and the
said Dargah was constructed by the forefathers of the
Complainant. After a span of time, the Dargah has
been allotted to the Wakf board. However, the
forefathers of the Petitioner / Complainant are serving
as Mutawalli of said Dargah. Since many devotees
visit the said Dargah for prayer, the Petitioner's father
had erected one structure and kept his office in the
aforesaid structure having tin shade on the area
admeasuring 20 x 20 feet and the same is existing
since long. Name of the father of Complainant was
also recorded in the Government Gazette of the Wakf
Board as Mutawalli in respect of said Dargah.
However, due to the old age the father of the Petitioner
/ Complainant was unable to render services as
Mutawalli of the said Dargah and thus he had
executed power of attorney in favour of the Petitioner /
Complainant for rendering services as Mutawalli of
said Dargah. Respondent / Accused No.1 is serving
908 CRI. WRIT PETITION.829 OF 2009.odt
as A.S.I at Police Station Nanalpeth, Parbhani, and he
is distant relative of Accused Nos.2 to 14.
Respondents / Accused Nos.2 to 14 are the beggars,
begging in front of said Dargah and sometime take
shelter in the open premises of said Dargah. It has
alleged in the complaint that in the night of 16 th
September, 2006, the son of Petitioner / Complainant
by name Masood was in the office and at that time,
Accused entered in Dargah premises with an intent to
commit theft in furtherance of their common intention
also to destruct the property of the office by way of
forming an unlawful assembly. They have taken
alongwith them cash amount of Rs.15,000/- from the
office table as well as destroyed the total tin shade
structure of the office and driven out said Masood from
the premises. It has further alleged in the complaint
that all the Accused persons brought six cycle
rickshaws and taken the material in those cycle
rickshaws. Even some material like iron logs and tins
are kept at police station by Accused No.1. In the
908 CRI. WRIT PETITION.829 OF 2009.odt
same night, at about 04:00 a.m., the Petitioner /
Complainant had been to Police Station Nanalpeth to
lodge the complaint, however, his complaint was not
accepted. Thus, the Petitioner / Complainant had
approached the Court by filing the complaint as
aforesaid.
b. Initially the learned Magistrate has directed
investigation as provided under Section 202 of the
Code of Criminal Procedure. The concerned P.S. has
submitted the report in the negative and after hearing
the counsel representing the Petitioner / Complainant,
the learned Chief Judicial Magistrate, Parbhani by
impugned order dated 9th April, 2008 dismissed the
complaint.
c. Being aggrieved by the same, the Petitioner /
Complainant preferred Criminal Revision Application
No.52 of 2008 before the Sessions Court, Parbhani
and the learned Additional Sessions Judge, Parbhani
by judgment and order dated 16th July, 2009,
908 CRI. WRIT PETITION.829 OF 2009.odt
dismissed the said revision application by confirming
the order passed by the learned Magistrate. Hence,
this criminal writ petition.
3 The learned counsel for the Petitioner / original
Complainant submits that the Government Gazette recorded the
name of the father of Complainant as a Mutawalli to the Dargah of
Sher Ali Baba and as such, the father of Petitioner is a Wakif of said
Dargah. Respondent No.4 and his brothers were rendering services
as sweepers to said Dargah and they also used to collect charity from
the devotees of said Dargah. However, Respondent No.4 / Accused
attempted to mutate his name in respect of said property and wanted
to evict his own brothers also. Thus, Respondent No.4 / original
Accused Shaikh Naseeb had instituted Regular Civil Suit No.106 of
1999 before the Civil Judge Junior Division, Parbhani for recovery of
possession of property against one Shaikh Hanif and the said suit
came to be dismissed by the judgment and order dated 20 th
December, 2006 by the 2nd Joint Civil Judge Junior Division, Parbhani
with a specific observations in paragraph No.22 of the judgment that
DW-3 Mohd. Khaled Ansari (present Complainant), who is son of
908 CRI. WRIT PETITION.829 OF 2009.odt
Mohd. Taher, Mutawalli of Sher Ali Baba Dargah, is declared as
Mutawalli and that present Respondent No.4 (Plaintiff in the said suit)
failed to prove that he is the Mutawalli of said Dargah. It is also held
that present Respondent No.4 has no right and title over the said
property of Dargah to seek possession thereof.
4 The learned counsel further submits that there is non-
compliance of provisions of Section 200 of the Code of Criminal
Procedure. The learned Chief Judicial Magistrate was bound to
record the statement of Petitioner / Complainant and his witnesses.
However, without complying the said provisions, the learned Chief
Judicial Magistrate has dismissed the complaint. Consequently, in
absence of any oral evidence in the form of statement of Complainant
and his witnesses, the learned Magistrate has observed that there is
no evidence as to when the Petitioner / Complainant established his
office in the premises of said Dargah and whether any permission of
Nagar Parishad or Wakf Board is taken for the same. The learned
counsel submits that even the Revisional Court has also not applied
his mind and observed that though opportunity has been given to the
Complainant, the Petitioner / Complainant has only advanced the
908 CRI. WRIT PETITION.829 OF 2009.odt
argument. The same is contrary to the record. The learned Chief
Judicial Magistrate in his impugned order has no where observed that
though such opportunity was given to the Petitioner / Complainant
without availing that remedy, the Petitioner / Complainant has only
advanced arguments. The learned counsel submits that the Petitioner
is ready to examine himself and ready to examine the witnesses to
substantiate the allegations made in the complaint in compliance with
the provisions of Section 200 of the Code of Criminal Procedure and
the matter may be remanded by setting aside the orders passed by
the Courts below.
5 None present for the Respondents / original Accused
though hearing of the writ petition adjourned on that count alone.
6 On perusal of complaint, it appears that the Petitioner /
Complainant has made serious allegations about his dispossession
from the Dargah premises. The Petitioner / Complainant has also
alleged that even though his father was Mutawalli and he had a power
of attorney issued by his father, Respondents / Accused in
furtherance of their common intention not only destroyed the office
having tin shade erected by the Complainant in the premises of the
908 CRI. WRIT PETITION.829 OF 2009.odt
aforesaid Dargah, but also committed the theft of cash amount of
Rs.15,000/-.
7 It is a part of record that the learned Chief Judicial
Magistrate has not complied with the provisions of Section 200 of the
Code of Criminal Procedure. In terms of Section 200 of the Code of
Criminal Procedure, a Magistrate taking cognizance of an offence on
complaint shall examine upon oath the complainant and the witnesses
present, if any, and the substance of such examination shall be
reduced to writing and shall be signed by the complainant and the
witnesses, and also by the Magistrate. The learned Magistrate
though found to have postponed to issue process by directing an
investigation to be made by the police officer, after submission of the
police report by the concerned P.S., dismissed the complaint only by
extending an opportunity to the Petitioner / Complainant to advance
the arguments. It is a part of record that father of the Complainant is
the Mutawalli of said Dargah and that the Petitioner / Complainant on
the basis of power of attorney executed in his favour by his father,
erected office having tin shade on the area of 20 x 20 feet in the
premises of said Dargah for which the permission of Nagar Palika is
908 CRI. WRIT PETITION.829 OF 2009.odt
not required. It appears that the learned Chief Judicial Magistrate has
not examined the Complainant and his witnesses as contemplated
under the provisions of Section 200 of the Code of Criminal
Procedure. Consequently, the learned Chief Judicial Magistrate has
observed many unwanted things in the impugned order. Furthermore,
it appears that the learned Chief Judicial Magistrate has also
considered the probable defence of the Respondents / Accused. The
learned Additional Sessions Judge has observed contrary to the
record that the Petitioner / Complainant instead of availing the
opportunity of leading additional evidence, advanced the argument
before the Chief Judicial Magistrate, through his counsel.
8 In view of the above, this Court left with no alternative but
to remand the matter to the Chief Judicial Magistrate, Parbhani with a
direction to pass an appropriate order on the complaint filed by the
Petitioner after complying with the provisions of Section 200 of the
Code of Criminal Procedure. Hence, the following order:
O R D E R
I. The criminal writ petition is hereby partly allowed.
908 CRI. WRIT PETITION.829 OF 2009.odt
II. The order passed by the Chief Judicial Magistrate,
Parbhani dated 9th April, 2008, below Exhibit - 1 in
R.C.C. No.507 of 2006 and the judgment and order
passed by the learned Additional Sessions Judge,
Parbhani dated 16th July, 2009 in Criminal Revision
Application No.52 of 2008, are hereby quashed and
set aside.
III. Complaint bearing R.C.C. No.507 of 2006, is hereby
restored to its original position with the following
directions:
a. The learned Chief Judicial Magistrate,
Parbhani shall pass an appropriate order
on the complaint after complying with the
provisions of Section 200 of the Code of
Criminal Procedure.
b. The Petitioner / Complainant shall appear
before the Chief Judicial Magistrate,
Parbhani on 9th January, 2017.
908 CRI. WRIT PETITION.829 OF 2009.odt
IV. The criminal writ petition is accordingly disposed of.
V. Rule is made absolute in the above terms.
[ V. K. JADHAV, J. ]
ndm
