Bombay High Court
Abdul Razak Jariwala vs Abdul Aziz Hasan on 18 December, 2023
Author: A. S. Gadkari
Bench: A. S. Gadkari
2023:BHC-AS:39880-DB
Ganesh 216-WP-364-2013.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 364 OF 2013
1. Abdul Razak Jariwala
Aged 70 years.
2. Abdul Razak Ahmed Taufiq
Aged 68 years.
3. Mohammed Salim Bhivandiwala,
Aged 47 years,
All residents of Oscar Tower,
Dr. Nair Road, Mumbai Central,
Mumbai - 400 008. ...Petitioners
V/s.
1. Abdul Aziz Hasan
Residing at Oscar Tower,
Dr. Nair Road, Mumbai Central,
Mumbai - 400 008.
2. Pravin Babar,
Senior Inspector of Police,
Nagpada Police Station, Mumbai.
3. The Commissioner of Police,
Mumbai.
GANESH
4. The State of Maharashtra
SUBHASH
LOKHANDE
5. Shabbir N. Patel,
GANESH
Digitally signed by
SUBHASH
GANESH Oscar Tower, Shop No.7,
LOKHANDE
SUBHASH
LOKHANDE
Date: 2024.01.08
18:03:01
Digitally +0530
signed
Ground floor, 28 Maratha Mandir Marg,
by GANESH
SUBHASH
LOKHANDE Mumbai - 400 008. ...Respondents
Date: 2024.01.08
18:03:52 +0530
Mr. Pawan Mali, for the Petitioners.
Mr. Prashant Pawar, for Respondent No.1.
Ms. Mahalakshmi Ganpathy, APP, for the Respondent Nos.2 to 4-State.
Mr. Emad Khan, for Respondent No.5.
1/4
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Ganesh 216-WP-364-2013.doc
CORAM : A. S. GADKARI AND
SHYAM C. CHANDAK, JJ.
DATE : 18th DECEMBER, 2023.
JUDGMENT [PER:- A. S. GADKARI, J]:-
1) By the present Petition under Article 226 of Constitution of
India, Petitioners, accused in C.R. No.01 of 2013 dated 1 st January, 2013
registered with Nagpada Police Station, Mumbai, under Sections 447, 427
read with 34 of the Indian Penal Code, 1960, have prayed for quashing of
the said crime.
2) Heard Mr. Mali, learned Advocate for the Petitioners, Mr.
Pawar, learned Advocate for Respondent No.1, Ms. Ganpathy, learned A.P.P.
for Respondent Nos.3 and 4 and Mr. Khan, learned Advocate for
Respondent No.5-landlord. Perused entire record produced before us.
2.1) Record indicates that, by an Order dated 7 th February, 2013,
Rule and interim relief was granted in favour of the Petitioners. As a
consequence thereof, till date police have not filed chargesheet in the
present case.
3) At the outset, Mr. Mali, learned Advocate for the Petitioners, on
instructions submitted that, he is not pressing the present Petition against
Respondent No.2, as he has been impleaded in his personal capacity. The
said statement is accepted.
4) Perusal of record indicates that, the Respondent No.1 has
Ganesh 216-WP-364-2013.doc
lodged present crime on 1st January, 2013. The Respondent No.1 was
working as a watchman at Oscar Towers, near Wadia Noor Masjid, Mumbai
Central, Mumbai. The Respondent No.5, who is the owner of the said
building, had employed the Respondent No.1 as watchman therein.
4.1) It is stated in the F.I.R. that, the timing of duty of Respondent
No.1 was from 8.00 a.m. to 7.00 p.m.. That, the Respondent No.5 had
prohibited the residents of the said building from going to the terrace and
lock was put on the door of the said terrace. The Manager of the said
building namely, Mr. Shivdas used to keep watch on the said building from
the C.C.T.V. cameras which were installed for keeping watch on the persons
entering in the said building. On 31 st December, 2012 at about 3.45 p.m.,
Manager Mr. Shivdas informed Respondent No.1 that, he saw on C.C.T.V.
camera four persons had been to the terrace of the said building. The
Respondent No.1, therefore along with Mr. Shivdas went to the terrace. He
noticed the door of the terrace was opened and lock thereon was in broken
condition. On the terrace, he saw Petitioners alongwith one unknown
person taking measurement of the plastic water tank fixed thereon. When
Mr. Shivdas questioned the Petitioners about breaking open the lock of the
terrace, they admitted to have done it with a view to take measurement of
the plastic tank fixed on the terrace. In this brief premise, present crime is
registered.
5) A minute perusal of the F.I.R. indicates that, the words "असून
Ganesh 216-WP-364-2013.doc
टे रे सचे दरवाज्यास कुलूप लावले आहे " i.e., a lock is put on the door of the
terrace, have been inserted/added between paragraph Nos. 1 and 2, in the
balance space available therein and it appears to us that, the same is
inserted with a view to improve the case of the prosecution. Even
otherwise, according to us, an offence under Section 447 of Indian Penal
Code has no application to the present crime.
5.1) Record further indicates that, there are litigations pending
between the Petitioners and Respondent No.5 interse on the civil side of this
Court and in various other Courts including the City Civil Court at Mumbai.
It is the very reason for the Respondent No.5, prompting Respondent No.1
to lodge present crime against the Petitioners to implicate them in it.
Perusal of the F.I.R. indicates that, initially there was no lock to the said
door, however, after effecting necessary improvements/insertions as noted
above, the present F.I.R. is lodged to attract cognizable offence.
6) In view of the above, we are of the considered opinion that,
continuation of the prosecution against the Petitioners at the behest of
Respondent No.5, will be sheer abuse of process of law and none else.
7) We, therefore unhesitatingly quash and set aside C.R. No.1 of
2013 registered with Nagpada Police Station, Mumbai, by allowing Petition
in terms of prayer clause (a).
8) Rule is made absolute in the aforesaid terms.
(SHYAM C. CHANDAK, J.) (A. S. GADKARI, J.)
