Bombay High Court
Sheikh Roshan S/O Akbar Hussain ... vs State Of Mah. Thr. Ps Buldhana City ... on 29 April, 2021
Bench: Z.A. Haq, Amit B. Borkar
Judgment 1 apl384.21.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (APL) NO. 384/2021
1] Sheikh Roshan S/O Akbar Hussain,
Aged about 72 years, Occ. Retired,
R/o. Ismailpura Kamptee,
Tah. And Dist. Nagpur
2] Abdul Farid S/O Abdul Rehman,
Aged about 41 years, Occ. Business,
R/o. Ismailpura Kamptee,
Tah. And Dist. Nagpur
3] Mohammad Khurshid S/O Mohammad Alimuddin,
Aged about 81 years, Occ. Retired,
R/o. Ismailpura Kamptee,
Tah. And Dist. Nagpur
4] Manjoor Ahmed S/O Mohd Aafaque,
Aged about 61 years, Occ. Retired,
R/o. Ismailpura Kamptee,
Tah. And Dist. Nagpur
5] Shafique Ahmad S/O Mohd Younis,
Aged about 41 years, Occ. Labor
R/o. Near Aadi Masjid, New Bazaar Kamptee,
Tah. And Dist. Nagpur
6] Irfan Ahmad S/O Shakeel Ahmad,
Aged about 29 years, Occ. Labor
R/o. Gunkar Colony, Kamptee,
Tah. And Dist. Nagpur
7] Shakeel Ahmad S/O Mohd Ibrahim,
Aged about 63 years, Occ. Retired,
R/o. Ismailpura Kamptee,
Tah. And Dist. Nagpur
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Judgment 2 apl384.21.odt
8] Sheikh Ibrahim S/O Sheikh Habuu,
Aged about 61 years, Occ. Retired,
R/o. Ismailpura Kamptee,
Tah. And Dist. Nagpur
9] Mohammad Khursid S/O Sheikh Bafati,
Aged about 75 years, Occ. Retired,
R/o. Ismailpura Kamptee,
Tah. And Dist. Nagpur
10] Abdul Salim S/O Abdul Rehman,
Aged about 61 years, Occ. Retired,
R/o. Ismailpura Kamptee,
Tah. And Dist. Nagpur
11] Mohammad D. Ibrahim S/O Mohammad Khursid,
Aged about 63 years, Occ. Retired,
R/o. Ismailpura Kamptee,
Tah. And Dist. Nagpur
12] Syed Farukh S/O Syed Usman Dongre,
Aged about 63 years, Occ. Retired,
R/o. Husainiya Masjid, Tipu Sultan Chowk,
Buldhana
.... APPLICANT(S)
// VERSUS //
State of Maharashtra,
Through Police Station Officer,
Buldhana City, Dist. Buldhana
.... NON-APPLICANT
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Shri M.N. Ali, Advocate for the applicant(s)
Ms. M. Deshmukh, APP for the non-applicant
*******************************************************************
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Judgment 3 apl384.21.odt
CORAM : Z.A.HAQ & AMIT B. BORKAR, JJ.
APRIL 29, 2021
JUDGMENT : (PER:- AMIT B. BORKAR, J. )
1] Heard.
2] RULE. Rule made returnable forthwith.
3] By this application under Section 482 of the Code of Criminal
Procedure, the applicants have challenged registration of the first
information report and charge-sheet bearing SCC No. 657/2020 for the
offences punishable under Sections 188, 269 and 270 of the Indian Penal
Code, Section 3 of the Epidemic Diseases Act and Section 54 of the Disaster
Management Act.
4] The first information report came to be registered against the
applicants with the accusations that the applicants and others who are
persons belonging to Tablighi Jamat, Buldhana were hiding at Husainiya
Markaz Masjid. It is alleged that when the Tahsildar raided the said Masjid,
he found the applicants hiding there and stated that they were staying there
for religious purpose. On their medical examination, it was revealed that they
were infected with Covid-19. It is also alleged that in the second test,
3 persons out of 11 were infected with Covid-19 which was suppressed from
the Government and therefore first information report came to be registered
against the applicants at the instance of Tahsildar, Buldhana. The
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Judgment 4 apl384.21.odt
Investigating Agency carried out the investigation and filed charge-sheet. The
applicants have therefore challenged registration of the first information
report and charge-sheet by way of the present application.
5] This Court on 09/03/2021 issued notice to the non-applicant. In
pursuance of the notice issued by this Court, the non-applicant has filed reply
stating that at the relevant time the applicants were staying in the Masjid and
when told to undergo Covid-19 test, all the applicants were shown as positive
but in the second test, only 3 persons were found Corona +ve. It is therefore
stated that though there was curfew in the area, the applicants entered into
Husainiya Markaz Masjid without permission of the Government. It is stated
that there is sufficient material against the applicants.
6] We have carefully considered the allegations in the first
information report and the material brought on record in the form of charge-
sheet. To support the contention, the applicants have relied upon the
judgments of the Division Bench of this Court in Criminal Writ Petition
No. 548/2020 (Konan Kodio Ganstone vs. State of Maharashtra) dated
27/08/2020, in Criminal Application (APL) No. 453/2020 (HLA SHWE &
ors. vs. State of Maharashtra) dated 21/09/2020 and in LD-VC/Criminal
Application (APL) No. 450/2020 (Batyrov Shukhratbek & ors. vs. State of
Maharashtra) dated 21/08/2020. It is submitted that the fact situation in the
above three judgments is similar to the fact situation of the present case.
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Judgment 5 apl384.21.odt
7] On careful consideration of the allegations in the first
information report and the material brought on record in the form of charge-
sheet, we are satisfied that there are no documents placed on record to show
that the applicants were tested positive for Covid-19 virus. In absence of the
material to show that the applicants were tested positive for Covid-19, the
ingredients of the offences under Sections 188, 269 and 270 of the Indian
Penal Code, Section 3 of the Epidemic Diseases Act and Section 54 of the
Disaster Management Act are not attracted. The judgment of the Division
Bench of this Court in the case of Batyrov Shukhratbek (supra) squarely
covers the issue involved in the present case. The Division Bench in the case
of Batyrov Shukhratbek (supra) has considered the similar fact situation in
para nos. 20 and 21. Hence, we are of the opinion that continuance of the
present proceedings against the applicants would amount to abuse of process
of the Court.
8] Hence, the following order:-
F.I.R. No. 425/2020 registered with the non-applicant - Police
Station and consequent Charge-sheet bearing SCC
No. 657/2020 against the applicants for the offences punishable
under Sections 188, 269 and 270 of the Indian Penal Code,
Section 3 of the Epidemic Diseases Act and Section 54 of the
Disaster Management Act are quashed and set aside.
Rule is made absolute in the above terms.
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Judgment 6 apl384.21.odt
CRIMINAL APPLICATION (APPP) NO. 434/2021
In view of the disposal of Criminal Application (APL)
No.384/2021, this application praying for removing the office objections
does not survive. It is disposed accordingly.
(JUDGE) (JUDGE)
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