Bombay High Court
Ali Alavali Shaikh vs The State Of Maharashtra on 13 November, 2025
HEMANT
2025:BHC-AS:48850
CHANDERSEN
SHIV
H SHIV 906 REVN374.2002.DOC
Digitally signed by
HEMANT
CHANDERSEN SHIV IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Date: 2025.11.14 CRIMINAL APPELLATE JURISDICTION
15:12:58 +0300
CRIMINAL REVISION APPLICATION NO. 374 OF 2002
Ali Alavali Shaikh,
Age 32 years, Occ. - Tailor,
Residing at Room No.3, Khalil Chawl,
Kismat Nagar, C.S.T. Road, Kurla (West),
Mumbai - 400070. ...Applicant
Versus
The State of Maharashtra
(at the instance of Matunga Police Station
vide L.A.C.No.2319/1988) ... Respondent
C.C.No.924/P/1989.
Mr. Kartik Garg, the learned Appointed Advocate for the Applicant.
Mr. Tanveer Khan, APP for the Respondent - State.
CORAM: SHYAM C. CHANDAK, J.
RESERVED ON : 7TH NOVEMBER, 2025
PRONOUNCED ON : 13TH NOVEMBER, 2025
JUDGMENT :
-
1. This Revision Application has challenged the legality of the Judgment
and Order dated 8/07/2002, in Criminal Appeal N0.328/2001, passed by
the learned Additional Sessions Judge, Greater Bombay, thereby, the said
Judge dismissed that Appeal affirming the Judgment and Order dated
31/10/2001, in C.C. No.924/P/1989, passed by the 30 th Court of the learned
Metropolitan Magistrate, Kurla, Mumbai whereunder the Applicant was
convicted for the offence punishable under Section 3 read with Section 25 of
the Indian Arms Act, 1959 ("the Act") and sentenced to suffer Rigorous
Imprisonment for one year and to pay a fine of Rs.5000, in default to suffer
Simple Imprisonment for a further period of three months.
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2. Heard Mr. Garg, the learned appointed counsel for the Applicant and
Mr. Khan, the learned APP for the Respondent - State. Perused the record.
3. The prosecution case was that, on 28/05/1988, at about 18.00 hours,
a reliable information was received at Matunga Police Station that an
unknown person would be coming near Sion Railway Station with pistol
and cartridges. At about 18.45 hours, a station diary entry was recorded and
Police Inspector Mr Tejale, then Police Constable Mr Suresh Parab (PW1),
then Sub-Inspector Mr Sanjay Kadam (PW4) and other police personnel
proceeded to the spot and kept a clandestine watch there. At about 19.15
hours, they saw the applicant moving suspiciously near Ramdev hotel. He
was trying to hide his identity and continuously tapping his left side pant
waist line. Hence, the police pounced upon the applicant and detained him.
Further, PW1 summoned two panchas and in their presence, personal
search of the applicant was conducted. One handgun and two cartridges
were found on the person of the applicant. PW4 seized and sealed the said
articles and recorded the detailed Panchnama of this action. Thereafter, the
police party returned to the police station alongwith the applicant and
seized articles. PW1 filed the Report and it was registered as Case
No.2319/1988 u/Sec.3 r/w 25 of the Act. PW4 conducted the investigation
and filed the Charge-Sheet against the applicant.
4. The learned Magistrate framed the charge of the said offence. The
applicant denied the charge and claimed to be tried. His defence was of
denial and false implication.
5. The prosecution examined 4 witnesses, i.e., Informant Suresh Parab
(PW1), Ballistic Expert Nandakumar Rokade (PW2), Panch Babu Rahim
(PW3) and Investigation Officer Sanjay Kadam (PW4). The relevant Station
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Diaries, FIR, Seizure Punchnama, Ballistic Report and the Sanction Order
to prosecute were produced to support their evidence. The applicant in his
statement under Section 313 Cr.P.C. has denied the incriminating evidence.
6. The Panch - PW3 did not support the prosecution case, and there is
nothing worthy in his evidence. However, on appreciating the testimonies of
other PWs and the documents in the light of the arguments advanced by the
parties, the learned Magistrate held that the applicant was found in
possession of the firearm and the cartridges illegally. Therefore, convicted
and sentenced the applicant. The applicant filed the Appeal questioning the
conviction and sentence, contending that, there is no reliable evidence
against him. However, on re-appreciating the evidence, the appellate Court
accepted the findings recorded by the trial Court and persuaded to dismiss
the appeal. Hence this Revision.
7. Mr Garg, the learned counsel first submitted that, there is material
inconsistency in the testimonies of PW1 and PW4 as to the timings when
the alleged information was received. Next, he contended that, it is not clear
as to whether the information was received from an informant; whether the
information was pertaining to an unknown offender or specifically related
to the applicant; and, whether the informant had accompanied with the
police party or not. He contended that, as per the 1 st station diary entry, the
police party had proceeded to Sion but only for enquiry. All these
inconsistencies, according to Mr Garg, create doubt in the case.
He submitted that, the alleged panchas were called only after
apprehending the applicant. PW1 or PW4 both did not offer their personal
search to the panchas before PW4 conducted the personal search of the
applicant. The spot of the incident was a crowded place. However, no
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independent witness is examined in this case. He submitted that, PW1 and
PW4 were part of the search and seizure. Yet, PW4 retained the
investigation with him. He submitted that, there is no evidence as to where
the seized articles were kept till the same were sent to the ballistic expert. As
such, the prosecution evidence is not reliable. The trial Court as well as the
appellate Court ignored these discrepancies in the evidence, which is
erroneous. Therefore, the conviction and sentence recorded against the
applicant is unsustainable, and it is liable to quashed and set aside.
8. Taking a strong exception to these submissions, Mr Khan, the learned
APP submitted that the evidence of PW1 and PW4 is very consistent, and it
is supported by the FIR and the seizure Panchnama. These witnesses had
no reason to foist the handgun and cartridges on the applicant, and show its
seizure to secure his conviction. The applicant has not explained the
possession of these articles. He submitted that, the inconsistencies pointed
out by Mr Garg have been properly dealt with by the appellate Court and
then only, the Court upheld the conviction. According to Mr Khan, even
otherwise, the said inconsistencies are minor and cannot be given unwanted
importance to disbelieve the prosecution case and upset the conviction.
9. I have considered these submissions and perused the evidence. From
the testimonies of PW2 and PW4 coupled with Form No.2 (Exh./P2) and
the Ballistic Report (Exh./P3), it has been proved that, on 01/06/1988,
PW4 had forwarded the handgun and the cartridges to seek the expert's
opinion. PW2 Rokade, the ballistic expert has deposed that the said articles
were received from Matunga police in a sealed condition. His Assistant had
examined the articles under his supervision. Accordingly, the Ballistic
Report was issued. It was signed by the Assistant Director Mr. M.D. Asgekar
and he identified the said signature. He deposed that, the handgun was in
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working condition and capable of chambering and firing 8 mm cartridges.
But, the seized cartridges are not capable. This evidence virtually remained
unchallenged in the cross-examination. Therefore, it cannot be rejected.
10. Now, the question is, whether the trial Court and the appellant Court
have correctly held the applicant is guilty of the alleged offence or not. Since
this is a Revision against the consistent findings of the conviction, this
Court has very limited jurisdiction to re-appreciate the evidence available
on the record.
11. As far as scope of power of this Court while exercising revisionary
jurisdiction under Section 397 is concerned, the Honble Supreme Court in
Krishnan and another v. Krishnaveni and another1, has held that in case
Court notices that there is a failure of justice or misuse of judicial
mechanism or procedure, sentence or order is not correct, it is salutary duty
of the High Court to prevent the abuse of the process or miscarriage of
justice or to correct irregularities/incorrectness committed by inferior
criminal Court in its judicial process or illegality or sentence or order. The
relevant observations are as under:-
"6. Section 401 of the Code gives to every High Court power
of revision. Sub-section (1) of the said section provides that in
the case of any proceeding the record of which has been called
for by itself or which otherwise comes to its knowledge, the
High Court may, in its discretion, exercise any of the powers
conferred on a Court of Appeal by Sections 386, 389 and 391
and on a Court of Sessions by Section 307. Apart from the
express power under Section 397 (1), the High Court has been
invested with suo motu power under Section 401 to exercise
1. (1997) 4 SCC 241.
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revisional power. In addition, Section 482 saves inherent
powers of the High Court postulating that :
"Nothing in this Code shall be deemed to limit or affect
the inherent powers of the High Court to make such orders
as may be necessary to give effect to any order under this
Code, or to prevent abuse of the process of any Court or
otherwise to secure the ends of justice."
Section 483 enjoins upon every High Court to so exercise its
continuous superintendence over the Courts of Judicial
Magistrate subordinate to it as to ensure that there is an
expeditious and proper disposal of cases by such Magistrates. It
is, therefore, clear that the power of the High Court of
continuous supervisory jurisdiction is of paramount
importance to examine correctness, legality, or propriety of any
finding, sentence or order, recorded or passed as also regularity
of the proceedings of all inferior criminal courts.
7. It is seen that exercise of the revisional power by the High
Court under Section 397 read with Section 401 is to call for the
records of any inferior criminal court and to examine the
correctness, legality or propriety of any finding, sentence or
order, recorded or passed, and as to the regularity of any
proceedings of such inferior court and to pass appropriate
orders. The Court of Sessions and the Magistrates are inferior
criminal courts to the High Court and Courts of Judicial
Magistrate are inferior criminal courts to the Sessions Judge.
Ordinarily, in the matter of exercise of power of revision by any
High Court, Section 397 and Section 401 are required to be
read together. Section 397 gives powers to the High Court to
call for the records as also suo motu power under Section 401 to
exercise the revisional power on the grounds mentioned
therein, i.e.. to examine the correctness, legality or propriety of
any finding, sentence or order, recorded or passed and as to the
regularity of any proceedings of such inferior court, and to
dispose of the revision in the manner indicated under Section
401 of the Code. The revisional power of the High Court merely
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conserves the power of the High Court to see that justice is
done in accordance with the recognised rules of criminal
jurisprudence and that its subordinates courts do not exceed
the jurisdiction or abuse the power vested in them under the
Code or to prevent abuse of the process of the inferior criminal
courts or to prevent miscarriage of justice.
8. The object of Section 483 and the purpose behind
conferring the revisional power under Section 397 read with
Section 401, upon the High Court is to invest continuous
supervisory jurisdiction so as to prevent miscarriage of justice
or to correct irregularity of the procedure or to mete out justice.
In addition, the inherent power of the High Court is preserved
by Section 482. The power of the High Court, therefore, is very
wide. However, the High Court must exercise such power
sparingly and cautiously when the Sessions Judge has
simultaneously exercised revisional power under Section 397
(1). However, when the High Court notices that there has been
failure of justice or misuse of judicial mechanism or procedure,
sentence or order is not correct, it is but the salutary duty of the
High Court to prevent the abuse of the process or miscarriage
of justice or to correct irregularities/ incorrectness committed
by inferior criminal court in its judicial process or illegality of
sentence or order."
12. Guided by the aforenoted enunciation by the Apex Court, I have
carefully considered the evidence of PW1 and PW4. The first informant PW1
deposed that on 28/05/1988, he was present on morning duty and attached
to detection staff. At that time, they received an information that a person is
carrying a revolver and live cartridges with him. In the cross-examination,
PW1 admitted that the description of the accused was not given (by the
informant). This evidence indicates that the alleged information was
pertaining to an unknown person. Same is discernible from the text of the
Report. (Exh./P1). However, according to PW4 the information was that the
applicant was likely to visit Sion railway station with arms. In the cross-
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examination, PW4 deposed that when he received the information, he was
given the description of the offender. Yet, the 1 st Station Diary Entry,
recorded at 18.45 hours (vide Exh./P6) by PW4 himself, does mention the
information and it's time, nor about the offender or person, in respect of
whom the information was allegedly received by PW4. In fact, the said entry
only mentions that, "PI Shri Tejale, SI Kadam, PN 2325, PN 17023, PC 4372
and staff left for enquiry at Sion". Even this entry is silent about the exact
place, where the police party wanted to keep watch, in Sion which is
undoubtedly a big area. Thus, there is a material improvement by PW4.
13. Another inconsistency which cannot escape consideration is, as
deposed by PW4, the information was received by him. However, in the
cross-examination, PW1 deposed that he had received the said information.
As noted above, according to PW1 the information was received in the
morning. Then, at about 10:30 hours, the police team including himself, Mr
Tejale, PW4 and other police staff proceeded to Sion. However, PW4 has
not deposed that the information was received in the morning session or at
any specific time. According to PW4, after recording the 1 st station diary
entry at 18.45 hours, he along with PW1 proceeded to Sion railway station to
keep the watch. Yet, PW4 has admitted that he had received the information
much prior to 18.45 hours. This admission clearly indicates that the
information was received in the morning as deposed by PW1. Nevertheless,
till 18.45 hours, PI Tejale or PW4 did not take any action in the matter.
Therefore, I find it difficult to believe the prosecution's claim that the
information was received against the applicant/accused, as deposed by PW1
and PW4.
14. As deposed by PW4, the description of the offender was given to him.
This fact indicates that some informant was involved in the matter. The
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evidence of PW1 is that, when the applicant arrived at the spot, the
informant had pointed at the applicant, therefore, the applicant was
apprehended. Thus, it is clear that the informant was present with the
police party. However, PW4 did not whisper about any informant or his
presence with the police party. On the contrary, PW4's testimony is that at
about 19.00 hours, he saw the applicant moving suspiciously before
Ramdev hotel, in front of Sion railway station. He and PW1 went there and
detained the applicant. This evidence of PW4 indicates that no informant
was involved in the process, when the applicant was accosted. In the cross-
examination, PW1 deposed that the informant was not travelling in their
police vehicle. Even the 1st station diary entry does not speak that an
informant had accompanied with the police party. Admittedly, when the
police party went to the spot, the description of the applicant was not
available with the police nor in the station diary. As admitted by PW1, the
spot was a crowded place. PW1 or PW4 had not informed exactly where they
were positioned to apprehend the applicant. Nonetheless, PW4 had not
deposed as to how he spotted the applicant in the crowd, and on what basis
he had identified him. It is significant to note that the handgun and the
cartridges were hidden on the person of the applicant. It was not possible
for any person to see it in that condition. Therefore, it is seriously doubtful
that PW4 had identified the applicant and then, he and PW1 apprehended
the applicant.
15. PW1 and PW4 have testified that, after detaining the applicant, two
panchas were called and personal search of the applicant was taken in their
presence. One revolver was found inside the pant on left side and live
cartridges were found in the right pant pocket of his trouser. Their evidence
indicate that, PW4 seized the said Muddemal, packed in a paper and sealed
it with the signature of the panchas. PW4 recorded the Panchnama
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(Exh./'X') of this action. Then they returned to the Police station alongwith
the applicant and the seized Muddemal. PW1 filed the Report (Exh./P1).
PW4 recorded that Report and registered the crime. PW4 deposed that,
after depositing the Muddemal in the police station, it was sent to the
ballistic expert for report.
The aforesaid evidence indicates that the handgun and the cartridges
were not sealed with lakh seal. The applicant was apprehended in a crowded
place. As such, some passers by must have gathered at the spot where the
search, seizure and the Panchnama action was recorded. However, no
independent witness is examined by PW4 during the course of the
investigation. PW1 and PW4 were part of the entire police action. But PW4
conducted the investigation and filed the charge-sheet. Mr Garg has fairly
submitted that, on this count alone, the prosecution case cannot be
disbelieved as a matter of rule. Nevertheless, Mr Garg is right that, looking
at the discrepant evidence of PW1 and PW4, the rule of prudence requires
the prosecution's version should stand corroborated by an independent
witnesses because availability of such a witness was not deniable. That
apart, there is no evidence as to where the handgun and the cartridges were
kept after its seizure. No doubt, the 2 nd station diary entry (Exh./P6) states
that the said articles were kept in the Police Station safe at Muddemal
No.148/1988. But that itself is not sufficient to accept that the said articles
were kept in the custody of the clerk concerned because the Muddemal clerk
is not examined and there is no evidence as to when the said articles were
taken out to send for the expert's opinion.
16. In Megha Singh v. State of Haryana 2, cited by Mr Garg, both the
material prosecution witnesses were police personnel and they were part of
2. (1996) 11 SCC 709.
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the seizure of the fire arm etc. However, there was material discrepancy in
their evidence. The appellant therein was apprehended at 12.00 noon, on a
road, in a village. Yet no independent witnesses was examined. The police
who effected the search, himself lodged the complaint and investigated the
case. In this background, the appellant therein was acquitted for the offence
of possessing the firearm. In another case Sahib Singh v. State of Punjab 3,
cited by Mr Garg, there was no evidence to indicate with whom the revolver
was after its seizure by PW3 therein till it was sent to the Arms Expert for
testing through the police carrier. Having regard to this missing link
weakening the prosecution case and other discrepancies, the appellant
therein was acquitted by the Apex Court.
17. The conspectus of the above discussion is that, there is material
inconsistency in the evidence of PW1 and PW4 as to receiving the secret
information, its source, timing of going to keep the watch and identifying
the applicant. There is no convincing evidence as to proper sealing and
custody of the seized Muddemal. Although independent witness could have
been examined, no attempt was made in that regard. Therefore, and having
regard to the reported cases cited by Mr Garg, I am of the considered view
that there is no cogent and reliable evidence in this case to maintain the
conviction and sentence imposed on the applicant. However, both the trial
Court and the appellate Court failed to appreciate the evidence on record as
required in law. Therefore, the impugned conviction and sentence is not
correct and legal and it is liable to be quashed and set aside. The Revision
Application succeeds, accordingly. Hence, following Order:
17.1 Revision Application is allowed.
3. (1996) 11 SCC 685.
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17.2 The impugned Judgment and Order dated 8/07/2002, in Criminal
Appeal N0.328/2001, passed by the learned Additional Sessions Judge,
Greater Bombay and the Judgment and Order dated 31/10/2001, in C.C.
No.924/P/1989, passed by the 30 th Court of the learned Metropolitan
Magistrate, Kurla Mumbai, are quashed and set aside.
17.3 The applicant is acquitted of the charge of the offence punishable
under Section 3 read with Section 25 of the Arms Act, 1959.
17.4 Bail bonds of the applicant stand cancelled.
17.5 Fine amount, if any paid by the applicant, be refunded.
(SHYAM C. CHANDAK, J.)
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