Bombay High Court
Sameer Mohd. Hussain Shaikh And Ors vs The State Of Maharashtra And Ors on 1 August, 2024
Author: Bharati Dangre
Bench: Bharati Dangre
2024:BHC-AS:31252-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 3540 OF 2016
Sameer Mohd. Hussain Shaikh And Ors. .. Petitioners
Versus
The State Of Maharashtra And Ors. .. Respondents
WITH
CRIMINAL APPLICATION NO.507 OF 2016
IN
CRIMINAL WRIT PETITION NO. 3540 OF 2016
Shoib Mohd. Akhil Abbasi And Anr. .. Intervenors
IN THE MATTER BETWEEN :
Sameer Mohd. Hussain Shaikh And Ors. .. Petitioners
Versus
The State Of Maharashtra And Ors. .. Respondents
...
Ms. Ratna R. Jaiswal, for the Petitioners.
Mr. Y. M. Nakhwa, A.P.P. for the State/Respondent.
PSI Mr. Santosh Masal, D. N. Nagar Police Station, is present.
...
CORAM : BHARATI DANGRE &
MANJUSHA DESHPANDE, JJ.
DATED : 1st AUGUST, 2024
P.C:-
1. The present Writ Petition filed in the year 2016, by
one Sameer Mohd. Hussain Shaikh and three others seek
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quashing of C.R. No.432 of 2016, registered on 01.07.2016,
thereby invoking Sections 323, 324, 504, 506 read with
Section 34 of the Indian Penal Code ("IPC").
Pertinent to note that on the very first date of
hearing of the Writ Petition i.e. on 10.10.2016, by way of ad-
interim relief it was directed that though the investigation
may continue but the charge-sheet shall not be filed.
This order continue to remain in operation, till the
Petition came to be dismissed for want of prosecution on
04.12.2023.
2. By an Interim Application filed seeking restoration
of the said Petition, we restored the Writ Petition and heard
the learned counsel Ms. Jaiswal, appearing for the Petitioner
and the learned A.P.P. Mr. Nakhwa for the State.
In the wake of the cross FIRs filed in respect of the
same incident, we asked Mr. Nakhwa to place on record the
injury certificates of the injured, in the C.R. No.432 of 2016,
which was prayed to be quashed and set aside and Mr. Nakhwa
has complied with our directions.
3. Another development during the pendency of the
Writ Petition, is also placed before us by Ms. Jaiswal, being a
Judgment delivered by the Metropolitan Magistrate on
28.03.2023, thereby convicting one Suleman Sharik and
Ejajuddin Gayajuddin Shaikh in C.R. No. 383 of 2016, which
was filed by Sameer Mohammad Hussain Shaikh, the
Petitioner No.1 before us.
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The Metropolitan Magistrate, referring to the case
of the prosecution which was registered on an complaint filed
by Sameer Shaikh, referred to the registration of the C.R. and
the investigation carried out.
The Magistrate determined the point for
consideration as to whether the prosecution has proved that
the accused in furtherance of their common intention had
voluntarily caused grievous hurt to the informant by
dangerous weapon like iron punch and whether the
prosecution have proved that the accused persons in
furtherance of their common intention insulted the informant
with intent to provoke breach of his peace.
Though the first point was answered in the
positive, the Magistrate clearly opined by considering the
nature of injuries and by making a reference to Section 320 of
the IPC that the act of voluntarily causing hurt by the accused
persons is punishable under Section 323 of the IPC and though
deposed by PW-1 and PW-2, the informant Sameer was
assaulted on his nose with weapon and he started bleeding and
later on became unconscious and was hospitalized, but for
want of seizure of the weapon and absence of medical
evidence, the Magistrate was not convinced that the hurt
caused would be covered by Section 326 of the IPC. Therefore,
since the powers vested in him, allowed him to punish the
accused persons for a lesser offence in the wake of Section
322(1) of the Cr.P.C., the two accused persons were convicted
under Section 323 read with section 34 of the IPC.
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4. In respect of the very same incident which resulted
in registration of C.R. No. 383 of 2016, registered on a
complaint was lodged by Mohammad Akhil Abbasi on
01.07.2016, where he referred to the incident dated 10.06.2016
which occurred at 6.15 p.m. when the four accused persons
Akbar Shaikh, Nadeem Shaikh, Imran Shaikh and Sameer
Shaikh and the other members of his family, came to the house
of the complainant and caused a brawl.
According to the complainant, when Sameer
Shaikh started abusing and assaulted the complainant, his
uncle Azaauddin Shaikh attempted to reconcile, however the
assailants continued with their aggressive approach and it is
alleged that Akbar picked up one weighing scale on the
hawking cart located nearby and also picked up a steel utensil.
Similarly, Sameer Shaikh is alleged to have picked up a stick
and mounted assaulting.
As per the complainant, since 3 to 4 people were
assaulting him and his parents and in that hustle bustle
Sameer Shaikh fell down and sustained injury on his nose and
started bleeding.
5. This version from Mohammad Shariq Abbasi
resulted invocation of section 323, 324, 504, 506 read with
Section 34 of the IPC.
In his complaint Mohammad Abbasi had
specifically narrated that Sameer fell down and therefore he
sustained a bleeding injury.
However, in the wake of the Judgment delivered by
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the learned Magistrate on 28.03.2023 in connection with the
cross C.R., accused Suleman and Ejajuddin have been found to
be guilty of committing offence punishable under Section 323
and have been sentenced accordingly.
6. When we have called for the medical papers, the
medical papers which are placed before us include the MLC of
the complainant Shariq Abbass (informant) and the Certificate
on examining him on 10.06.2016 has referred to the following
injuries :
(i) Abrasion, 4.00 x 0.5 cms. on neck.
(ii) Abrasion, 3 x 1, blunt
(iii) Assault over head and nose - no visible injury seen.
7. From perusal of the injury certificate, it appears
that the injuries are in form of abrasion and as per the
complainant he was assaulted in his head by three to four
persons by means of the weighing scale, rod and steel utensil
but in absence of any corresponding injury sustained, by the
complainant, according to us no offence is made out under
Sections 323 and 324 of the IPC.
As far as the Sections 504 and 506 is concerned,
there is no material to that effect.
Since we have noted that the CR is registered in the
year in 2016 and it is more than eight years, that the
investigation was completed but the charge-sheet is not filed,
on account of lapse of time, we do not deem it appropriate to
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continue the trial and make the accused persons undergo its
rigmarole after eight years. We have also taken a note of the
injury certificate of Sameer, the Petitioner No.1 who has
sustained abrasion and assault on head and though it was not
established before the Magistrate that the hurt amounted to
grievous hurt, the accused in the counter case have suffered
conviction under Section 323 of the IPC.
Since continuation of the proceedings against the
present Petitioner would amount to abuse of process of law, we
deem it appropriate to quash the subject C.R. No.432 of 2016,
registered on 01.07.2016, against the Petitioners.
Petition is allowed in the aforesaid terms.
8. In the wake of disposal of the Writ Petition, the
Criminal Application No. 507 of 2016 also stands disposed off.
(MANJUSHA DESHPANDE,J.) (BHARATI DANGRE, J.)
Digitally
signed by
CHAITANYA
CHAITANYA ASHOK
ASHOK JADHAV
JADHAV Date:
2024.08.06
19:19:31
+0530
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