Bombay High Court
Harish Takurdas Rizwani vs The State Of Maharashtra And Another on 8 January, 2025
2025:BHC-AUG:999
922-Cri-WP-1222-2023-Judgment.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1222 OF 2023
Harish Thakurdas Rizwani
Age: 42 years, Occu: Business,
R/o. Opposite Collector Office,
Vazirabad, Nanded ... Petitioner
Versus
1. State of Maharashtra
Through Police Station Officer
Vazirabad Police Station, Nanded
District Nanded
2. Dhanraj Navalrai Rizwani
Age: 60 years, Occu: Business,
R/o: Vazirabad, Nanded
3. Arjundas Navalrai Rizwani
Age: 61 years, Occu: Business,
R/o: Vazirabad, Nanded ... Respondents
....
Mr. Satyajit S. Bora, Advocate for the Petitioner
Mr. S. M. Ganachari, APP for Respondent No.1
Mr. V. C. Patil (Ashtekar), Advocate for Respondent Nos. 2 and 3
....
CORAM : Y. G. KHOBRAGADE, J.
DATE : 08.01.2025
ORAL JUDGMENT :-
1. Rule. Rule made returnable forthwith. With the
consent of the parties, it is heard finally at the stage of admission.
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2. The Petitioner is the informant and Respondents 2 & 3 are
accused in Crime No.0167 of 2017 registered with Vazirabad Police
Station, Nanded, for the offences punishable under Section 506 read
with Section 34 of the Indian Penal Code and under Section 4/25 of
the Arms Act. After filing the charge-sheet it is registered as R.C.C.
No.487 of 2017 and pending on the file of the learned Chief Judicial
Magistrate, Nanded.
3. The Petitioner/informant invokes jurisdiction of this
Court under Article 227 of the Constitution of India read with Section
482 of the Code of Criminal Procedure and takes exception to the
order dated 03.03.2023 passed by the learned Sessions Judge,
Nanded in Criminal Revision Application No.30 of 2022, thereby the
present Respondent Nos. 2 and 3 / original accused Nos. 2 and 3 in
Crime No.0167 of 2017 are discharged for the offences punishable
under Section 506 read with Section 34 of the Indian Penal Code and
under Section 4/25 of the Arms Act.
4. Mr. Bora, the learned counsel for the Petitioner canvassed
that, on 14.05.2017, the Petitioner lodged a oral report with Nanded
Police Station alleging that, on 13.05.2017 at about 8.00 p.m., when
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he was proceeding with his family members on motorcycle toward
Vazirabad Chowk from Tarasing Market at that time, the accused
No.1 Sainath Vibhute and Respondent Nos. 2 and 3 followed him on
different motorcycles. Therefore, he entered Vazirabad Police Station,
Nanded and the accused persons stopped near wall of the Police
Station. Thereafter, some police personnel visited near gate of police
station and brought the accused to Police Station. Thereafter, the
Police took search of accused No.1 Sainath Vibhute and during search
one Dagger (Khanjir) was found in his possession. The informant
further alleged that, since past 3 - 4 years, some dispute in respect of
landed property is going on with accused Nos. 2 and 3 and they
wanted to take revenge with the help of the accused No.1 Sainath
Vibhute, hence, they followed him. On the basis of said report, Crime
No.167 of 2017 registered against the accused persons for the offence
punishable under Section 506 read with Section 34 of the Indian
Penal Code and under Section 4/25 of the Arms Act. After due
investigation, the Investigating Officer filed charge-sheet against the
accused persons.
5. On 17.04.2019, Respondent Nos. 2 and 3/original
accused Nos. 2 and 3 filed Exh.24 an application for discharge in
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Crime No.167 of 2017. On 10.01.2022, the learned Chief Judicial
Magistrate passed an order and rejected the same.
6. Being aggrieved by said order, Respondent Nos. 2 and 3
filed Criminal Revision Application No.30 of 2022 before the Sessions
Court, Nanded. On 03.03.2023, the learned Sessions Court passed
the impugned order and set aside order dated 10.01.2022 passed
below EXh.24 in R.C.C. No.487 of 2017 passed by the learned Chief
Judicial Magistrate, Nanded and discharged the Respondent Nos. 2
and 3 for said offences.
7. The learned counsel for the Petitioner canvassed in
vehemence that the Petitioner/complainant has specifically stated in
his report that due to going of dispute in respect of landed property
with Respondent Nos. 2 and 3, therefore they followed the Petitioner
and these respondents 2 & 3 wanted to take revenge against the
petitioner with the help of accused No.1 who was found with deadly
weapon like dagger to assault the petitioner. So also, the present
Respondent Nos.2 and 3 were found together on their motorcycles
while chasing the Petitioner. Therefore, intention of the Respondents
to attack or to commit criminal act constitute an offence punishable
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under Section 506 read with Section 34 of the Indian Penal Code.
However, the learned Revisional Court wrongly relied on the cases of
Ramashish Yadav and Others Vs. State of Bihar, in Appeal (Cri.)
No.719 - 722 of 1996, decided on 09.09.1999 by the Hon'ble
Supreme Court and on case of Mohmed Rafiq Abdul Rahim Shaikh
Vs. The State of Gujarat in Criminal Appeal No.1901 of 2008 , decided
by the Supreme Court on 13.09.2018 and discharged the Respondents
2 & 3. Therefore, prayed for quashing and setting aside the
impugned order.
8. Per contra, the learned Counsel for Respondent Nos.2 and
3 supported findings of the Revisional Court. It is contended that as
per contents of the F.I.R., the accused No.1 Sainath Vibhute and
accused Nos. 2 and 3 (present Respondent Nos. 2 and 3), were
proceeding on their separate motorcycles it itself it does not
constitute any offence. The Respondent Nos. 2 and 3 have not
committed any criminal act. Merely the Accused persons were found
while proceeding on their different motorcycles it does not suggest
that the Respondent 2 & 3 were following the complainant with
intention to assault the petitioner. Therefore, essential ingredients to
constitute the offence punishable under Section 506 read with
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Section 34 of the Indian Penal Code does not constitute. Therefore,
the Petitioner has not made any substantial ground to interfere with
the findings recorded by the learned Revisional Court, hence, prayed
for dismissal of the Petition.
9. In order to constitute an offence punishable under
Section 506 read with Section 34 of the Indian Penal Code, it is
necessary to set out the fact that, the Respondent Nos.2 and 3 have
criminally intimated to the informant as provided under Section 503
of the Indian Penal Code, which reads as under:-
"503- Criminal Intimidation - Whoever, threatens another with
any injury to his person, reputation or property, or to the
person or reputation of any one in whom that person is
interested, with intent to cause alarm to that person, or to
cause that person to do any act which he is not legally bound to
do, or to omit to do any act which that person is legally entitled
to do, as the means of avoiding the execution of such threat,
commits criminal intimidation.
Explanation - A threat to injure the reputation of any
deceased person in whom the person threatened is interested,
is within this section."
Section 34 of the Indian Penal Code reads as under:-
"34. Acts done by several persons in furtherance of common
intention. --
When a criminal act is done by several persons in furtherance
of the common intention of all, each of such persons is liable
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for that act in the same manner as if it were done by him
alone."
10. On plain reading of Section 34 it prima facie appears that,
to constitute an offence with other penal provision, it is necessart to
bring on record that, the criminal act is done by several persons in
furtherance of their common intention.
11. In case in hand, the petitioner has not disclosed fact in his
report that, the Respondents 2 & 3 have criminally intimated the
petitioner/informant and caused alarm to him or the petitioner was
compelled to do certain things which he was not bound to do or the
Respondents 2 & 3 have issued any threats to the petitioner. On
perusal of the F.I.R., it appears that, when the informant/Petitioner
notice that the accused No.1 Sainath Vibhute and present
Respondents 2 and 3 are coming from his rear side on separate
motorcycles, hence, he presumed that they following him. Therefore,
he visited the Police Station. However, there is no statement in F.I.R.
that, the present Respondents did any such act as contemplated under
Section 503 of the Indian Penal Code. Mere presence of three accused
persons together while proceeding separately on their Motorcycles it
does attract Section 34 of the Indian Penal Code.
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12. After going through the impugned order it prima facie
appears that, the learned Revisional Court considered case of
Ramashish Yadav cited (supra), wherein it is held as under:-
"The distinct feature of section 34 is the element of
participation in action. The common intention implies acting in
concert, existence of a pre-arranged plan which is to be proved
either from conduct or from circumstances or from any
incriminating facts. It requires a prearranged plan and it
presupposes prior concert. Therefore, there must be prior
meeting of minds. The prior concert or meeting of mind may be
determined from the conduct of the offenders unfolding itself
during the course of action and the declaration made by them
just before mounting the attack. It can also be developed at the
spur of the moment but there must be pre-arrangement or
premediated concert. This being the requirement of law for
applicability of section 34 IPC, from the mere fact that accused
Ram Pravesh Yadav and Ramanand Yadav came and caught
hold of Tapeashwar, whereafter Samundar Yadav and Sheo
Layak Yadav came with gandasa in their hands and gave blows
by means of gandasa, it cannot be said that the accused Ram
Pravesh Yadav and Ramanand Yadav shared the common
intention with accused Samundar Yadav and Sheo Layak
Yadav."
13. In case of Mohmed Rafiq Abdul Rahim Shaikh, (supra),
though, it is upon conviction of accused persons under Section 25(1)
(a) and 25(1AA) read with Section 35 of the Arms Act, 1959, the
observations of the Hon'ble Supreme Court in para Nos. 30 and 31
are applicable to the facts and circumstances raised in the charge-
sheet, are as follows:-
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"30. To bring home a charge it was obviously necessary for the
prosecution to establish intention and consciousness of the A-4
of the fire arms and ammunition found in A-4's house. This was
not done. But even if one considers whether A-4 was in
constructive possession the charge and conviction cannot be
sustained. For, in order to consider a finding of constructive
possession it is necessary that either there is proof that the
Accused had placed the weapons or was at least in control of
the house in which they were found.
31. In this case, the only proof relating to the alleged
complicity of the Accused is that he has not been in possession
or occupation of the house for almost three months as he was
in detention. Strangely, there is no evidence that the house was
locked from the outside. The window of the room, which led to
the cellar, was said to be locked from inside. Additionally, an
iron gate that had a lock on the outside had to be broken. We
consider it highly inappropriate in these circumstances to
uphold a conviction of constructive possession of the firearms
with which A-4 is not shown to have had any connection or
control."
14. Under the facts and circumstance of the case as discussed
above, I do not fiend the impugned judgment and order is perverse,
illegal, bad in law and no substantial grounds are set to interfere
with the findings recorded by the learned Revisional Court. Therefore,
present Petition deserves to be dismissed. Accordingly, the Writ
Petition is dismissed. Rule is discharged.
[ Y. G. KHOBRAGADE, J. ]
SMS
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