Shaikh Sajjad Hussain Shaikh Abed ... vs The State Of Maharashtra And ...
2023 Latest Caselaw 3985 Bom

                                          1                 Cr. Appln. 1058 / 2023



           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       BENCH AT AURANGABAD

                      CRIMINAL APPLICATION NO. 1058 OF 2023
1] Shaikh Sajjad Hussain Shaikh Abed Hussain
   Age - 79 years, Occu - Retired
   R/o Mouje Saygaon, Tq. Ambajogai
   District - Beed

2] Shaikh Taufiyoddin Shaikh Amiroddin
   Age - 37 years, Occu - Agriculturist
   R/o Mouje Saygaon, Tq. Ambajogai
   District - Beed

3] Sahaikh Shabbir Hussain Shaikh Sajjad Hussain
   Age - 39 years, Occu - Agriculturist
   R/o Mouje Saygaon, Tq. Ambajogai
   District Beed                                                      .. Applicants

           Versus

1] The State of Maharashtra
   Through the Police Inspector of Bardapur
   Police Station, Tq. Ambajogai,
   District Beed

2] Shaikh Mohammad Hussain
   S/o Shaikh Ahmed Hussain
   Age - 55 years, Occu - Agriculturist
   R/o Mouje Saygaon, Tq. Ambajogai,
   District Beed                                                     .. Respondents


                                       ...
                    Advocate for applicants : Mr. H.V. Tungar
                 APP for the respondent - State : Mr. S.D. Ghayal
                                       ...

                                 CORAM        : MANGESH S. PATIL &
                                                ABHAY S. WAGHWASE, JJ.

                                 DATE         : 21 APRIL 2023




  ::: Uploaded on - 25/04/2023                       ::: Downloaded on - 25/04/2023 23:58:56 :::
                                     2                  Cr. Appln. 1058 / 2023



ORDER (MANGESH S. PATIL, J.) :

By resorting to the provisions of section 482 of the Code of

Criminal Procedure, 1973, the applicants are seeking quashment of

crime no. 34 of 2011 registered with Bardapur Police Station, Taluka

Ambajogai, Dist. Beed and the Sessions Case no. 100 of 2011 pending

on the file of learned Sessions Judge at Ambajogai for the offences

punishable under section 307, 323, 504, 506 r/w. 34 of the Indian Penal

Code and section 30 of the Arms Act.

2. We have heard the learned advocate Mr. Tungar for the

applicants. He submits that the applicants are seeking quashment of

the crime and the criminal case. The application for compounding the

crime was moved before the Sessions Court (Exhibit 109) under

section 320 of the Criminal Procedure Code but since the offence is not

compoundable, the application is rejected and the applicants are

seeking quashment solely on the ground of such settlement and

compromise with the respondent no. 2.

3. Mr. Tungar would place reliance on the decision in the

matters of Gian Singh Vs. State of Punjab and another; (2012) 10

SCC 303, Narinder Singh and others Vs. State of Punjab and

another; 2014 ALL MR (Cri.) 1886 (S.C.) and Ramawatar Vs. State

of Madhya Pradesh; .

3 Cr. Appln. 1058 / 2023

4. The learned APP strongly opposes the application. He

submits that in-fact the trial is on the verge of completion. Recording of

testimonies is over and even the applicants i.e. accused persons have

been examined under section 313 of the Code of Criminal Procedure.

He would further point out that the crime is serious. A rifle has been

used to shoot at the informant but for the intervention of the witnesses

it would have hit on the head of the informant, in all probability causing

his death. Apart from the fact that the offence is not compoundable

and even if it is trite that criminal cases can be quashed on the basis of

compromise even in non-compoundable cases, that is not the rule.

Depending on the facts and circumstances of each case such a

decision will have to be taken. Considering the peculiar facts and

circumstances and even the stage of the trial where only arguments

will have to be heard and judgment would be pronounced, it would not

be appropriate to quash the crime.

5. We have carefully considered the rival submissions and

perused the papers.

6. There is no dispute about the fact that the trial is on the

verge of conclusion. Only arguments have remained to be heard.

Pertinently, the informant has been examined as a prosecution witness

no. 1 (Exhibit 35) and he has supported the prosecution. He has

4 Cr. Appln. 1058 / 2023

expressly stated about accused - Sajjad Hussain (applicant no.1)

having fired at him with a gun and in all probability the bullet would

have hit on his head but for the timely intervention of witnesses Azam

Khan and Najimoddin. Witness Najimoddin (PW2) has also testified

corroborating the version of the respondent no. 2 informant in stating

that accused - Sajjad Hussain i.e. applicant no. 1 having fired at the

respondent no.2 and but for his action along with one Azam Khan, the

respondent no. 2 would have died and the bullet went in air. If such is

the state-of-affairs, it is indeed a serious crime. A gun has been used

to fire at the respondent no. 2 - informant on head and fortunately for

him due to intervention of couple of individuals he was not killed.

7. Pertinently, even there is a charge for the offence

punishable under section 30 of the Arms Act which provides for

punishment for contravention of conditions of the licence. Only

fortunately the respondent no. 2 is still alive. A firearm like the gun has

been used in contravention of the licence. Permitting such settlement

and quashing the crime would really be against the public policy. It

would be like indirectly suggesting that in spite of breach of the terms

and conditions of the arms licence, a person can get scot-free.

8. This precisely would weigh with the Courts whenever a

request is made for quashing the crime on the basis of compromise in

the matters which are not compoundable. Suffice for the purpose to

5 Cr. Appln. 1058 / 2023

refer the parameters laid down in the matter of Gian Singh Vs. State

of Punjab and another (supra) further elaborated in the matter of

Narinder Singh and others (supra).

9. Pertinently, in the matter of Narendra Singh (supra)

though there was an offence punishable under section 307 of the

Indian Penal Code, it was observed that the offence was initially

registered merely under section 323, 324 r/w. Section 34 of the Indian

Penal Code and only after obtaining x-ray report regarding one of the

injuries that section 307 of the Indian Penal Code was added. Again

the evidence was yet to be led. In view of the compromise there were

minimal chances of witnesses coming forward in support of the

prosecution. Even if the injuries were proved, it would have been

difficult to attribute its authorship and the chances of conviction were

remote. Ex facie, such is not the state-of-affairs in the matter in hand

wherein admittedly, the testimonies have been recorded and even the

respondent no.2 as well as the eye witnesses have clearly supported

the prosecution.

10. In the matter of Ramawatar (supra), the offence

punishable under section 3(1)(x) of the Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Act, 1989 r/w. Section 34 of

the Indian Penal Code was involved and the crime was quashed in

exercise of the powers under section 482 of the Code of the Criminal

6 Cr. Appln. 1058 / 2023

Procedure post conviction by invoking the powers under Article 142 of

the Constitution of India and considering the nature of the crime

punishable under section 3(1)(x) of the Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Act, 1989 coupled with the

peculiar facts and circumstances obtaining therein. We do not have

that power or jurisdiction which vests with the Supreme Court under

Article 142 of the Constitution of India.

11. The Application is rejected.

  [ ABHAY S. WAGHWASE ]                       [ MANGESH S. PATIL ]
         JUDGE                                      JUDGE

arp/