Dismissed

Abdul Razzak S/O Abdul Hamid v. the State of Maharashtra and Anr.

Bombay HC19 Dec 2016APPLN/3165/2015

Case brief

AI extract

What is this about?

The High Court dismissed a Criminal Application filed by a hawker seeking quashing of a charge-sheet. The court held that a prima facie case existed and that investigation irregularities, absent gross illegality, are curable under CrPC. The trial court was directed to scrutinize the evidence.

What did the court decide?

Application dismissed; rule discharged; no order as to costs.

Abdul Razzak S/O Abdul Hamid Vs the State of Maharashtra and… — Quashing and FIR | Bombay HC (2016)

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cra3165.15

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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BENCH AT AURANGABAD

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CRIMINAL APPLICATION NO.3165 OF 2015

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Abdul Razzak s/o Abdul Hamid,
Age-45 years, Occu:Hawkers,
R/o-Mominpura, Georai,
Tq-Georai, Dist-Beed.

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...APPLICANT

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 VERSUS

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1) The State of Maharashtra,
 Through: The Police Inspector,
 Georai Police Station, Georai,
 Dist-Beed,

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2) Hamid Chand Shaikh,
 Age-45 years, Occu:Service,
 As A.P.I. Police Station Georai,
 Tq-Georai, Dist-Beed
 (Deleted as per Court's order
 dated 31st July 2015).
...RESPONDENTS

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 ...
 Mr.R.G. Hange Advocate for Applicant.
 Mr.B.V. Virdhe, A.P.P. for Respondent No.1.
 ...

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CORAM: S.S. SHINDE AND
 K.K. SONAWANE, JJ.

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DATE OF RESERVING JUDGMENT : 9TH DECEMBER,2016.

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 DATE OF PRONOUNCING JUDGMENT: 19TH DECEMBER, 2016.

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JUDGMENT [PER S.S. SHINDE, J.]:

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1. Rule. Rule made returnable forthwith and

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heard finally with the consent of the learned
counsel appearing for the parties.

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2.This Application is filed by the
Applicant praying therein that, the proceeding/
charge-sheet of S.C.C. No.173 of 2015 pending on

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the file of Judicial Magistrate First Class,
Georai pursuant to Crime No.121 of 2014 registered
with Georai Police Station, District Beed for the
offence punishable under Section 3 and 7 of the
Essential Commodities Act and under Section 188 of
the Indian Penal Code and F.I.R. in Crime No.121
of 2011 registered with Georai Police Station,
District Beed as against the present Applicant may
kindly be quashed and set aside.

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3.The learned counsel appearing for the
Applicant submits that the First Information

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Report as well as charge-sheet does not disclose

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that informant had checked stock of kerosene

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available with Applicant in stock register and
therefore there is no evidence to show that
alleged kerosene was supplied to Applicant under

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the public distribution system, so there is no
material to book the Applicant in any offence. The
report and charge-sheet filed by the police does
not disclose as to which order was violated by the
Applicant so as to attract the provisions of
Section 3 and 7 of the Essential Commodities Act.

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In the report and charge-sheet nowhere it is
mentioned what was the Government rate for selling
the kerosene at the relevant time, so allegation
made in the report that Applicant was selling
kerosene at higher rate appears to be false.

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4.Learned counsel appearing for the

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Applicant also invited our attention to the other

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grounds taken in the Application and submits that
Section 188 of the Indian Penal Code contemplates

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that disobedience to order issued by public

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servant should cause or likely to cause harm,
therefore there is no prima facie case under
Section 188 of the Indian Penal Code against the
Applicant.

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5.The learned counsel appearing for the
Applicant, in support of his contention submitted
that, it is essential for bringing an application
of Section 7 to show that some order has been made
under Section 3 of the said Act and the order has
been contravened. He placed reliance on the
reported Judgment of the Supreme Court in the case
of Prakash Babu Raghuvanshi vs. State of Madhya

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Pradesh, 2004 ALL M.R. (Cri) 3473 (S.C.). The
learned counsel for the Applicant, in support of
his submissions, also placed reliance on the
Judgment of the Bombay High Court, Nagpur Bench in

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the case of Amarjeetsingh s/o Jeevansingh and

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another vs. State of Maharashtra and others, 2006

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ALL M.R. (Cri) 489.

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6.Learned counsel appearing for the

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Applicant further submits that Applicant is hawker
and the provisions of the Maharashtra Scheduled
Commodities Retail Dealers Licensing Order, 1979

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are not applicable in his case as the said
provisions deal with the license order issued in
favour of retail dealers. He submits that police
officer is not authorized to register the offence

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or to file the charge-sheet. He invited our
attention to the provisions of the Maharashtra P D
S Kerosene Wholesalers, Semi-wholesalers and
Hawkers (Licensing) Order, 2008.

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7.On the other hand, the learned A.P.P.,

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relying upon the Judgment of the Division Bench of
the Bombay High Court, Nagpur Bench in the case of

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Dinesh s/o Bhawarlal Sarda vs. State of
Maharashtra in Criminal Writ Petition No.33 of
2007, delivered on 26th September 2008, and
submits that once the charge-sheet is filed before

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the competent Court, this Court, if there is an
irregularity in an investigation, unless it is
shown that it is tainted by gross illegality which
may have caused miscarriage of justice, would not
interfere and leave it to the concerned Court to
decide the case on merits. The learned A.P.P. also
invited our attention to the averments in the
affidavit in reply filed on behalf of Respondent
and also to the provisions of the Maharashtra
Scheduled Commodities Retail Dealers Licensing
Order, 1979 and submits that the Application be
rejected.

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8.We have given careful consideration to
the submissions made by the learned counsel
appearing for the Applicant, perused the grounds
in the Application, annexures thereto and the
reply filed on behalf of Respondent State and also
documents placed on record. Upon perusal of the
charge-sheet and its accompaniments, we are of the
opinion that the prosecution agency has collected

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sufficient material. Keeping in view the
exposition of law in the case of Dinesh s/o
Bhawarlal Sarda vs. State of Maharashtra, supra,
we are of the opinion that an irregularity in an
investigation, unless it is shown that it is
tainted by gross illegality which may have caused
miscarriage of justice would be curable in terms
of Section 465 of the Code of Criminal Procedure.
Thus it is clear that illegal investigation does
not prohibit a Court from taking cognizance upon
submission of charge-sheet or final report as
contemplated under Sections 170, 171, 172 and 173
of the Code of Criminal Procedure. The Applicant
may also raise an objection regarding illegality
of investigation. In view of Section 173(8) of the
Code of Criminal Procedure, the Court may direct
furtherinvestigationbyanappropriate
investigating officer if it considers that demands
of justice require it. In the present case, as
already observed, charge-sheet is already filed.
The prosecution will have to and must be given

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opportunity to prove that investigating officer
was duly empowered to investigate into the case

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and also to substantiate it's stand that
investigation was done according to law.

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9.Therefore, in the light of discussion
herein above, since the police have already filed
charge-sheet in the case upon completion of
investigation against the Applicant, it would be
under judicial scrutiny of the trial Court. The
trial Court will scrutinize the material on record
and other circumstances and shall proceed with the
case in accordance with law. The Applicant will be
at liberty to raise plea for discharge in the
Court below, if so advised, which if raised, shall
be considered on its merits and in accordance with
law as expeditiously as possible and preferably

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within three months from the date of receipt of
this order.

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10.For the reasons stated above, the

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Application has no merits and it deserves to be
dismissed. Accordingly the Application is

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dismissed. Rule is discharged. There shall be no

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order as to costs.

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[K.K. SONAWANE, J.] [S.S. SHINDE, J.]

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asb/DEC16

Abdul Razzak S/O Abdul Hamid v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Abdul Razzak S/O Abdul Hamid v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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