Bombay High Court
Chand Abbasali Shaikh vs Rizwan Imdadullal Kazi And Others on 27 March, 2017
Bench: T.V. Nalawade
( Judgment ) (1)
Cri.
W.P.
No.
0917 of 2016
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
Criminal
Writ Petition
No.
0917
of
2016
District : Osmanabad
Chand Abbasali Shaikh,
Age : 46 years,
Occupation : Service,
R/o. Naldurg,
Taluka Tuljapur,
District : Osmanabad. .. Petitioner.
versus
1. Rizwan Imdadullal Kazi,
Age : 33 years,
Occupation : Business,
R/o. Kazi Galli, Naldurg,
Taluka Tuljapur,
District Osmanabad.
2. Imran Imdadullah Kazi,
Age : 29 years,
Occupation : Business,
R/o. Kazi Galli, Naldurg,
Taluka Tuljapur,
District Osmanabad.
3. Furkan Shabbir Shaikh,
Age : 28 years,
Occupation : Business,
R/o. Dag Bangla, Naldurg,
Taluka Tuljapur,
District Osmanabad.
4. Mahmood Uloom Kazi,
Age : 33 years,
Occupation : Business,
R/o. Kazi Galli,
Naldurg,
Taluka Tuljapur,
District Osmanabad.
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5. Numan Shabbir Shaikh,
Age : 25 years,
Occupation : Business,
R/o. Dag Bangla, Naldurg,
Taluka Tuljapur,
District Osmanabad.
6. Shiraj Rabani Jahagirdar,
Age : 30 years,
Occupation : Business,
R/o. Inamdar Galli,
Naldurg,
Taluka Tuljapur,
District Osmanabad.
7. Sadat Ashpak Inamdar,
Age : 33 years,
Occupation : Business,
R/o. Indira Nagar,
Naldurg, Taluka Tuljapur,
District Osmanabad.
8. Nasir (Chotu) Aashpak Inamdar,
Age : 29 years,
Occupation : Business,
R/o. Indira Nagar, Naldurg,
Taluka Tuljapur,
District Osmanabad.
9. Himayat Yusuf Khateeb,
Age : 28 years,
Occupation : Business,
R/o. Pariwar Hotel,
Bus Stand, Naldurg,
Taluka Tuljapur,
District Osmanabad.
10. Haji Yusuf Khateeb,
Age : 30 years,
Occupation : Business,
R/o. As above.
11. Mubshir Mogul Kazi,
Age : 25 years,
Occupation : Business,
R/o. Kazi Galli,
Naldurg, Taluka Tuljapur,
District Osmanabad.
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12. Rizwan Hasan Shaikh,
Age : 31 years,
Occupation : Business,
R/o. Rahim Nagar,
Naldurg, Taluka Tuljapur,
District Osmanabad.
13. Imtiyaz Izaj Shaikh,
Age : 30 years,
Occupation : Business,
R/o. Inamdar Galli,
Naldurg, Taluka Tuljapur,
District Osmanabad.
14. Alim @ Mirza Khaled Beg
Mujawar (Nanima Darga),
Age : 43 years,
Occupation : Mujawar,
R/o. Kazi Galli,
In front of National School,
Naldurg, Taluka Tuljapur,
District Osmanabad.
15. Shoeb Nisar Mugge (Shaikh)
Tyrewale,
Age : 23 years,
Occupation : Business,
R/o. Inamdar Galli,
Naldurg, Taluka Tuljapur,
District Osmanabad.
16. The State of Maharashtra. .. Respondents.
...........
Mr. Mobin H. Shaikh, Advocate, for the petitioner.
Mr. Mateen Hameed Badewale, Advocate, for
respondent nos.01 to 15.
Mr. S.D. Ghayal, Addl. Public Prosecutor, for
respondent no.16.
...........
CORAM : T.V. NALAWADE, J.
DATE : 27TH MARCH 2017
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ORAL
JUDGMENT
:
Heard learned Advocates for the respective
parties.
02. Rule. Rule made returnable forthwith. By
consent of the learned Advocates for respective
parties, heard finally.
03. This petition is filed to challenge the
order passed by the Judicial Magistrate (F.C.),
Tuljapur, in Criminal Misc. Application No. 292/2012,
on 05.12.2012, and also to challenge the order passed
by the Addl. Sessions Judge, Osmanabad, below Exhibit
01 in Criminal Revision No. 02/2013, on 23.12.2015.
04. The Criminal Misc. Application was filed
before the Magistrate by the present petitioner,
complainant, with a prayer to take action against the
accused for commission of offences punishable under
Sections 307, 326, 324, 504, 506, read with Section
34 of the Indian Penal Code. The complainant had
made application to Wakf Board for registration of
Nani Maa Darga as a Wakf and that was given on
21.05.2009. There was dispute between the complainant
on one hand and the accused on the other hand as the
accused were against such registration. It is stated
in the complaint, that on 24.08.2012, at about 03.30
p.m., the District Wakf Officer came to Darga for
making enquiry and for making Panchanama. The
complainant has contended that the accused were
( Judgment ) (5)
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present and he was also present there and the
District Wakf Officer gave direction to the accused
for supplying information with regard to income of
Darga. When the District Wakf Officer left, accused
picked up quarrel with the complainant by asking as
to why he had given application for registration of
the Wakf.
05. Allegations are made that during quarrel,
accused no.02 instigated others to finish the
complainant. Allegations are made that accused no.01
gave blow of iron rod on nose of the complainant and
then accused nos.03 to 15 also assaulted him on right
side of his head and iron bars were used. It is the
case of the complainant, that due to the assault
made, he has become deaf in right ear. Allegations
are made that the remaining accused assaulted him
with kick blows and at that time, witness no.01 came
there to rescue him. Allegations are made that the
accused are influential persons and due to their
influence, Police did not take action against the
accused even after commission of the offence
committed, but they started proceedings under Section
107 of the Code of Criminal Procedure, 1973, against
the complainant. It is contended that as he
sustained injuries, he was first referred to Primary
Health Centre at Naldurg and then he was referred to
Civil Hospital at Solapur. He has contended that
though he went to Civil Hospital, Solapur, no
attention was paid to him and he was told to go back
without proper treatment. As he was suffering from
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pains, he went to one ENT specialist by name Dr.
Girish Harkut, who operated him. After completion of
medical treatment, he was discharged from the
hospital on 29.08.2012.
06. It appears that the statement of the
complainant and two witnesses were recorded. The
Magistrate perused these statements and dismissed the
complaint under Section 203 of the Code of Criminal
Procedure, 1973, by observing that there were
inconsistencies in the statements of the complainant
and his witnesses and he has not produced medical
record in support of his allegations.
07. This Court has gone through the original
record which was called in the matter. The record
show that the medical record was already produced by
the complainant which include the referral card of
Primary Health Centre at Naldurg, case paper prepared
by Civil Hospital Solapur and also record of
treatment given by Dr. Girish Harkut. This record
consistently shows that he had sustained injuries in
the incident occurred on 24.08.2012 and he was
referred by the Police to Primary Health Centre,
Naldurg. The record shows that the Primary Health
Centre, Naldurg, had referred him to Civil Hospital
at Solapur on 24.08.2012. Surprisingly, there is
only case paper bearing no. 13899 showing that he was
not even properly examined. Then there is record of
Dr. Girish Harkut showing that the complainant had
suffered grievous injuries and he has become deaf in
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his right ear.
08. Though the statements of the witnesses
recorded under Section 200 of the Cr.P.C. are not
exactly as per the allegations made by the
complainant, there was aforesaid record and it could
have been observed that there was material on record
to corroborate the allegations made by the
complainant. The circumstances are sufficient to
prima facie infer that some incident had taken place.
If there was some doubt in the mind of the
Magistrate, it was open for the Magistrate to give
direction to the Police to investigate under Section
202 of the Cr.P.C. into the matter. But instead of
doing that, the Magistrate pointed out the
inconsistencies in the statement of the complainant
and statements of witnesses recorded under Section
200 of the Cr.P.C. The Magistrate ignored the medical
record mentioned above and dismissed the complaint
under Section 203 of the Cr.P.C.
09. Similarly, the relevant record is not at all
considered by the Addl. Sessions Judge. Therefore,
this Court holds that interference is warranted in
exercise of supervisory jurisdiction of this Court
under Article 227 of the Constitution of India. A
direction needs to be given to the Magistrate to
consider the matter afresh and if he feels that the
enquiry in the matter is necessary, he can order
enquiry under Section 202 of the Cr.P.C.
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10. In the result, the Petition is allowed. The
impugned order dated 05.12.2012, passed by the
Judicial Magistrate (F.C.), Tuljapur, in Criminal
Misc. Application No. 292/2012, so also, the order
dated 23.12.2015, passed by the Addl. Sessions Judge,
Osmanabad, in Criminal Revision No. 02/2013, are
quashed and set aside. Revision is allowed. The
matter is remanded back to the Magistrate with a
direction to consider the matter afresh and if the
Magistrate feels that the enquiry under Section 202
of the Cr.P.C. is necessary, he shall pass
appropriate orders. The Magistrate shall not get
influenced by the observations made in this judgment
about the material on record and he shall pass orders
on merits of the case.
11. Rule made absolute in the above terms.
( T.V. Nalawade )
JUDGE
...........
puranik / CRIWP917.16
