Bombay High Court
Abdul Gaffar Quadri Abdul Razzak Quadri vs The State Of Maharashtra And Others on 21 April, 2025
2025:BHC-AUG:11443
944.Cri.WP-410-2025.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Criminal Writ Petition No. 410 Of 2025
Dr. Abdul Gaffar Quadri s/o Abdul Razzak Quadri,
Age : 67 years, Occupation -Medical Practitioner,
R/o Seema Nursing Home,
Roshan Gate, Aurangabad. .. Petitioner
Versus
1. State of Maharashtra
through Police Inspector,
City Chowk Police Station,
Aurangabad.
2. Ajaj Ahmed Khan Abdulla Khan,
Age : Major, Occ. Business,
R/o Plot No.66, New S.T. Colony,
Katkat Gate, Aurangabad.
3. Abdul Wajid Abdul Sattar,
Age : 43 years, Occ. Service,
R/o Maulana Azad High School,
Town Hall, Aurangabad.
4. Manjur Ahmed Qureshi,
Age : 63 years, Occ. Retired,
R/o Maulana Azad High School,
Town Hall, Aurangabad. .. Respondents
*****
* Mr. Shailendra S. Gangakhedkar,
Advocate for the Petitioner.
* Mr. K.K. Naik, APP for Respondent/State.
* Mr. C.V. Dharurkar,
Advocate for the Respondent No.2.
*****
[1]
944.Cri.WP-410-2025.odt
CORAM : SHAILESH P. BRAHME, J.
Date On Which The
Arguments Were Heard : 8th APRIL 2025
Date On Which The
Judgment Is Pronounced : 21st APRIL 2025
J U D G M E N T :
1. Rule. Rule is made returnable forthwith with the
consent of the parties. Heard both sides finally
considering exigency in the matter.
2. Petitioner has invoked jurisdiction of this Court
under Article 227 of the Constitution of India and
under Section 482 of the Code of Criminal Procedure to
challenge following orders passed by the Judicial
Magistrate First Class, Aurangabad in R.C.C.
No.654/2013 :
(a) Order dated 12.02.2018 issuance of process against
Petitioner.
(b) Order dated 01.07.2022 below Exhibit-82 framing of
charge.
(c) Order dated 16.05.2024 below Exhibit-88, rejecting
application for conducting investigation.
3. In a private complaint which was filed by the
Respondent No.2 registered as R.C.C. No.654/2013, the
allegations are that the Petitioner is the President of
Education Institution which runs aided school.
944.Cri.WP-410-2025.odt
Respondent No.2 is his nephew who was appointed as Peon
on the basis of forged transfer school certificate and
without following procedure of law. Though he was
illiterate, he was shown to be 5th standard passed. On
the basis of bogus documents, approval was secured from
the Education Officer. Due to illegal appointment,
Petitioner and Respondent Nos. 2 and 3 deceived the
Government and public exchequer. It is stated that they
have committed offence under Sections 409, 465, 467,
471 read with 34 of the Indian Penal Code.
4. Considering the complaint of the Respondent No.2,
his verification recorded on 28.05.2013 and statement
of one of the witnesses, process was issued only
against Respondent Nos. 2 and 3 by the jurisdictional
Magistrate on 13.12.2023. Being aggrieved, Revision was
filed by the Respondent No.2/Complainant which was
allowed vide judgment and order dated 01.01.2018.
Judgment and order of the Revisional Court dated
01.01.2018 was challenged by the Petitioner vide
Criminal Writ Petition No.269/2018. It was disposed of
vide order dated 02.12.2019 without interfering
impugned order of the Revisional Court with a direction
to the Magistrate to proceed in accordance with law.
However by that time already process was issued against
the Petitioner vide order dated 12.02.2018.
5. A charge was framed by the learned Magistrate vide
Exhibit-84 against the Petitioner and Respondent No.3
944.Cri.WP-410-2025.odt
for offence under Sections 409, 465, 467, 471 read with
34 of the Indian Penal Code on 01.07.2022 which is
under challenge in the present petition. Petitioner
submitted application Exhibit-88, soliciting direction
to conduct investigation as per the order dated
02.12.2019 passed in Writ Petition No.269/2018. It was
rejected on 16.05.2024 which is also impugned in the
present petition.
6. Learned Counsel Mr. S.S. Gangakhedkar appearing
for the Petitioner submits that there is no prima facie
case or material against the Petitioner and it would be
abuse of process of law to proceed against him. He
would submit that charge was framed against him without
following the procedure contemplated by Chapter XV of
the Code. The impugned orders below Exhibits-84 and 88
are against the directions issued by High Court in Writ
Petition No.269/2018. It is further submitted that no
investigation was conducted and no evidence or any
fresh material was brought on record before framing
charge. Hence impugned orders are unsustainable. There
is violation of Sections 245 and 246. He would rely on
judgment of Supreme Court in the matter of Sunil Mehta
and Another Vs. State of Gujarat and Another, (2013) 9
SCC 209.
7. Per contra, contesting Respondent No.2/Complainant
who is represented by Advocate Mr. Chaitanya Dharurkar,
944.Cri.WP-410-2025.odt
repels the submissions by tendering on record certified
copy of evidence of the Complainant recorded before
charge on 25.03.2019 and Exhibit-86 dated 01.07.2022.
He would advert attention to the Roznama dated
26.11.2024 to show that Petitioner and his lawyer were
absent when they were called upon to cross-examine the
Complainant which was evidence before charge. In the
absence of cross-examination, the deposition of the
Complainant was considered and the charge was framed.
It is submitted that Criminal Writ Petition No.269/2018
was filed belatedly because by that time process was
issued. It is further submitted that there is gross
delay in challenging the issuance of process. It is
submitted that due procedure of law was followed by
Magistrate in passing impugned orders and the matter is
at the stage of recording of statement under Section
313. It is further submitted that the Petitioner is
protracting the matter. He did not raise any objection
at the time of framing of charge. Remedy under Section
397 of the Code was passed. It is submitted that in
view of lapses on the part of the Petitioner, he is not
entitled to any discretional relief.
8. Learned APP supports impugned order and adopts the
submissions of Respondent No.2.
9. At the outset, it needs to be noted that R.C.C.
No.654/2013 filed on 12.04.2013 has not been decided by
944.Cri.WP-410-2025.odt
the trial Magistrate even after 12 years. The
proceedings were stayed by interim orders on 02.12.2019
in Criminal Writ Petition No.269/2018, preferred at the
instance of Petitioner, challenging judgment and order
dated 01.01.2018 passed in Criminal Revision
No.01/2014. Before filing of the petition in the High
Court, process was issued against the Petitioner on
12.02.2018 which was not brought to the notice of High
Court while passing order dated 12.06.2019 and final
order on 02.12.2019. No reason is coming-forth as to
why this important aspect of the matter was suppressed
from High Court.
10. It is rightly contended by Advocate Mr. Dharurkar
that Criminal Writ Petition No.269/2018 was belatedly
filed and so is the case with present petition which is
filed on 01.12.2024, challenging orders dated
12.02.2018 (issuance of process); order dated
01.07.2022 (framing of charge) and order dated
16.05.2024 (rejecting application Exhibit-88). After
six years, the Petitioner challenged the orders of
issuance of process.
11. When his plea was recorded under Section 246 on
01.07.2022, Petitioner did not express any protest.
Against the order dated 01.07.2022 below Exhibit-24,
remedy under Section 397 of the Code was available to
the Petitioner which has not been availed and directly
petition is filed. There are lapses on the part of the
944.Cri.WP-410-2025.odt
Petitioner. This Court is of the considered view that
Petitioner cannot be permitted to take disadvantage of
his lapses. Petitioner has protracted the proceeding,
suppressed the material facts and approached this Court
belatedly.
12. It reveals from record that initially process was
issued on 13.12.2013 against Respondent Nos. 3 and 4,
considering the complaint, verification of the
Complainant, statement of witness - Mr. Javed Moiuddin
and report of investigation under Section 202.
Thereafter additional Sessions Judge held that in
judgment and order dated 01.01.2018 in Criminal
Revision No.01/2014 that there was prima facie case
against the Petitioner. This judgment and order was
sought to be challenged in Criminal Writ Petition
No.269/2018, but it was not upset by the High Court. On
the contrary, it was observed in its order dated
02.12.2019 that Magistrate would proceed with in
accordance with law. On this backdrop, order of
issuance of process which is impugned was issued on
12.02.2018. Considering the material against the
Petitioner referred above, I am of the considered view
that there is strong prima facie case against him
undisputedly Respondent No.3 who was appointed by the
Petitioner, is his nephew and the allegations against
them are serious and needs to be gone into by full-
fledged trial.
944.Cri.WP-410-2025.odt
13. Learned Counsel for the Petitioner vehemently
canvassed that procedure contemplated by Chapter XV was
not followed. After issuance of process, the evidence
for prosecution was adduced under Section 244 of the
Code. The Complainant adduced his evidence. His
deposition was recorded on 25.03.2019. Roznama produced
by the Petitioner alongwith paper-book shows that
Petitioner failed to cross-examine the Respondent
No.2/Complainant. Though he was present, matter was
adjourned to 20.04.2019, 07.06.2019, 15.06.2019.
Ultimately vide order dated 26.11.2024, it was recorded
by learned Presiding Officer that accused and their
Counsel failed to conduct cross-examination. Thereafter
matter was closed for framing of charge. Evidence
closure pursis was filed by the Complainant. Thus it is
evident that matter was posted for evidence before
charge and ample opportunity was given to the
Petitioner and co-accused to conduct cross-examination.
This would amount to sufficient compliance of Section
244.
14. Considering material on record and failure on the
part of the Petitioner to conduct cross-examination,
Magistrate found sufficient material to frame charge.
Ultimately on 11.07.2022 charge was framed. I do not
find any procedural illegality or irregularity in
framing the charge. I do not find any substance in the
submission of the Counsel for the Petitioner that no
944.Cri.WP-410-2025.odt
further evidence was adduced or additional material was
not placed before the Court and whatever material which
was there at the stage of Section 202, the charge was
framed.
15. Learned Counsel has relied on the judgment of
Supreme Court in the matter of Sunil Mehta and Another
(supra). In that case, Appellant before the Supreme
Court were accused against whom process was issued by
the Magistrate after conducting inquiry under Section
202 of the Code of Criminal Procedure. That was
challenged before High Court unsuccessfully. When the
parties were before the trial Court for adducing
evidence under Section 244, Respondent-Complainant
therein, chose not to lead any evidence and whatever
was submitted alongwith complaint, was to be considered
for framing of the charge. The charge was framed
considering the material which was before the Court at
the stage of issuance of process which is disapproved
by the Supreme Court. I have gone through Paragraph
Nos. 9, 10, 12 and 14 of the judgment of the Supreme
Court. However, the matter before the Supreme Court is
distinguishable on facts.
16. In the case in hand, endeavour was made by the
Complainant to adduce evidence before the charge. The
deposition of the Complainant was recorded and the
Complainant was offered for cross-examination. Thus at
944.Cri.WP-410-2025.odt
the time of framing of the charge, deposition of the
Complainant recorded before framing of charge was
considered and then the charge is framed. Therefore
what is laid down by the Apex Court has already been
followed in the present case. The Petitioner cannot get
any benefit of the judgment.
17. Application Exhibit-88 was filed on 18.07.2022,
soliciting direction to conduct investigation. Such a
type of application was not maintainable. By order
dated 16.05.2024, it was rightly rejected. I do not
find any illegality or perversity. Magistrate is not
expected to undertake any investigation after evidence
has been adduced and the charge has been framed.
Petitioner failed to examine Complainant and the
evidence was closed. The Magistrate is bound to follow
procedure as per Section 246 of the Code.
18. For the reasons recorded above, I find no merit in
the petition. Criminal Writ Petition is dismissed. Rule
is discharged. R.C.C. No.654/2013 is expedited.
SHAILESH P. BRAHME
JUDGE
NAJEEB...
