Allowed

Javed S/O. Altaf Shaikh v. the State of Maharashtra and Anr.

Bombay HC10 Jan 2019APPLN/2463/2018

Case brief

AI extract

What is this about?

The High Court allowed the applicant's criminal application to quash proceedings against him in an attempted murder/hype case. The court held that without material proof beyond a proclaimed statement by a co-accused, the proceedings constituted an abuse of process.

What did the court decide?

The proceedings in R.C.C. No.369 of 2018 pending against the applicant are quashed and set aside to the extent of the applicant.

Javed S/O. Altaf Shaikh Vs the State of Maharashtra and Anr. — Quashing and FIR | Bombay HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL APPLICATION NO.2463 OF 2018

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Javed s/o Altaf Shaikh,
Age : 30 years, Occu. Business,
R/o Flat N.68, Altaf Villa,
Near Ashoka Hotel, AhmednagarAPPLICANT

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VERSUS

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1. The State of Maharashtra, through Police Station Officer, Tofkhana Police Station, Ahmednagar, Dist. Ahmednagar

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2. Lovkartar Singh Chawala, Age : 39 years, Occu. Business, R/o House No.61, Police Colony, Sonanagar, Savedi, Ahmednagar RESPONDENTS

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Mr. Shaikh Mazhar A. Jahagirdar, Advocate for
the applicant

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Mr. S.B. Joshi, A.P.P. for respondent No.1/State
Mr. Farooqui Kamaluddin N., Advocate (appointed)
for respondent No.2

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CORAM :S.S. SHINDE AND
R.G. AVACHAT, JJ.
DATE :10th JANUARY, 2019

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JUDGMENT (PER : R.G. AVACHAT, J.) :

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Rule. Rule made returnable forthwith and
with the consent of the learned counsel for the
parties and the learned A.P.P., heard finally.

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CRIAPLN2463-2018

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2.The applicant is one of the accused in a case,
being Regular Criminal Case (RCC) No.369 of 2018,
pending on the file of the learned Chief Judicial
Magistrate, Ahmednagar, for the offences punishable
under Sections 307, 395, 341, 143, 147, 148, 506 read
with section 149 of the Indian Penal Code and under
Section 4 read with section 25 of the Indian Arms Act.
By the present application, the applicant seeks
quashment of the proceedings in R.C.C. No.369 of 2018.

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3.The F.I.R. was lodged by one Laoktar Singh
Chawala – respondent No.2 herein on 6th March, 2018, for
the aforementioned offences, alleging therein that on 3rd
March, 2018 by 7.15 p.m., he received a phone call of an
unknown person. The caller told him that he wanted to
buy a jeep to be given in gift to his son on the day of
Shivjayanti. Since the first informant intended to sell
his jeep, the caller wanted to see it and have trial
thereof. After fifteen minutes again, the first
informant received a phone call of the same unknown
person, asking the informant to come towards Balaji
Mandir as he did not find the first informant's
residence. The first informant, therefore, went towards

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CRIAPLN2463-2018

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Balaji Mandir in his jeep. He met one unknown person

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there. He asked the first informant to follow him to

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his residence since his (unknown person's) father went
ahead. The first informant, therefore, followed him
towards Mistbag Chowk area. Within 5 to 10 minutes, two
vehicles came there. Imran Shaikh (accused No.1)
accompanied by six others (named in the FIR) got down
from those vehicles. Having seen all of them, the first
informant did not come out of his vehicle. Imran
(accused No.1) was armed with a scythe. He came close to
the first informant and dragged him out of the vehicle.
Imran assaulted on first informant's head with the
scythe. The others, who had accompanied Imran, also bit
up the first informant. During the incident, Imran told
the first informant that he had been financed by the
proprietor of Simla Builder, namely Javed (applicant
herein) and others to eliminate the first informant.
Further allegations in the F.I.R. indicate that accused
Ali Ayyaj Shaikh snatched the gold chain of the first
informant.

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.Based on the F.I.R., Crime No.I-130/2108 for

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the offences mentioned hereinabove came to be registered
with Tofkhana Police Station, Ahmednagar. On completion

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4 CRIAPLN2463-2018

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of the investigation, the chargesheet came to be laid.
The applicant has been cited as one of the accused in
the case.

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4.The learned counsel for the applicant would

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submit that there is no iota of material to implicate
the applicant in the crime in question. Learned counsel
took us through the papers of investigation to
substantiate his claim.

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5.Both, the learned counsel for the first

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informant – respondent No.2 and the learned A.P.P.
would, on the other hand, submit that there are
statements to suggest the applicant to have had financed
accused No.1 – Imran and others to assault the
applicant.

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6.Without detaining ourselves to the submissions

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advanced by learned counsel for the parties, it would be
apposite to scrutinize the police papers to find out
whether the prosecution is justified in proceeding

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against the applicant by filing the chargesheet. Before
undertaking the said exercise, we must mention the legal
position in regard to such an exercise.

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CRIAPLN2463-2018

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7.In case of State of Haryana and others,

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Appellants V. Ch. Bhajan Lal and others, Respondents,

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AIR 1992 S.C.604, it has been observed thus :-

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“In following categories of cases, the High Court may in exercise of powers under Art.226 or under S.482 of Cr.P.C. may interfere in proceedings relating to cognizable offences to prevent abuse of the process of any Court or otherwise to secure the ends of justice. However, power should be exercised sparingly and that too in the rarest of rare cases.

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(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

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(2) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under S.156(1) of the Code except under an order of a Magistrate within the purview of S.155(2) of the Code.

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(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

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(4) Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under S.155(2) of the Code.

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CRIAPLN2463-2018

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(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

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(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

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(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

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8.Admittedly, the applicant was not directly

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involved in the incident of assault on the first
informant that took place on the night of 3rd March,
2018. The applicant is alleged to have had financed

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accused No.1 Imran and others for making an attempt on
his life. The material sought to be let in to connect
the applicant with the crime in question is in the
nature of a proclaimed statement of accused Imran at the
time of the assault on the first informant. For better
appreciation, we propose to re-produce the same in
verbatim:-

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CRIAPLN2463-2018

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“ rsOgk bezku R;kP;k gkrkr yks[kaMh dks;rk ?ksowu ekÖ;k toG vkyk o eyk gk;dh nsr Eg.kkyk vkEgh MwIyhdsV isij dsysY;k eWVj e/;s rq- e/;s iMrks vkeps fo:/n lk{k nsrks] iksyhlkar rØkjh nsowu xqUgs nk[ky djrks vkEgh ;sFks vkysys loZt.k ,d >kkyks vkgksr fleyk fcYMlZpk tkosn] unhe othj 'ks[k] 'kkarhyky ladyspk x.ks'k ek/ko cosZ ;k lokZuh vkEkyk Qk;ukUl dsyk vkgs rqw>h vkt xse dsY;koj rq dks.kk dks.kk fo:/n iksyhlkr tkrks vls EG.kr eyk xpkaM h /k:u xkMh [kkyh vks<w ykxyk ckn'kgk 'kqHke ljnkj iBk.k ;kauh gh njoktk m?kMwu eyk ckgsj vks<ys eh ckgsj ;srkp] bezku us R;kP;k gkrkry dk;R;kus ekÖ;k MksD;koj okj d: ykxyk-**

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9.The aforesaid proclaimed statement made by

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accused Imran would, at the most, be in the nature of a

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statement of a co-accused. Close scrutiny of the
relevant police papers would indicate that the
Investigating Officer did not make an investigation to
find out whether the applicant had really financed
accused Imran and others for making an assault on the
life of the first informant.

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10.Admittedly, except the aforesaid statement,

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without there being any material in proof of truth of
the said statement, allowing the proceeding in Regular

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Criminal Case No.369 of 2018 against the present
applicant, would be nothing but an abuse of process of
law.

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CRIAPLN2463-2018

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11.For the reasons given hereinabove, we are
inclined to allow the application in terms of the
following order:-

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(a)The Criminal Application is allowed in terms of
prayer clause (B) to the extent of the present
applicant.

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(b)The proceeding in R.C.C. No.369 of 2018 pending

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on the file of learned Chief Judicial Magistrate,
Ahmednagar, to the extent of the applicant, is quashed
and set aside.

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(c)Rule is made absolute in the above terms. The
Criminal Application stands disposed of accordingly.

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(d)Since Mr. Farooqui Kamaluddin N., learned

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Advocate was appointed to defend the case of respondent
No.2, his fees be paid as per the Schedule of Fees
maintained by the High court Legal Services Sub-
Committee, Aurangabad.

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npj/CRIAPLN2463-2018

Javed S/O. Altaf Shaikh v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Javed S/O. Altaf Shaikh v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

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