High Court
Legal Reasoning
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD36 CRIMINAL APPLICATION NO.3441 OF 2023Rizwan Zafar s/o Abdul Salam Deshmukh,Age 42 yrs., Occ. Business,R/o Opp. Aqsa Masjid, Aqsa Colony,New Shahenshah Nagar, Beed,Tq. & Dist. Beed. … Applicant… Versus …1The State of MaharashtraThrough City Police Station,Beed, Tq. & Dist. Beed. 2Naseeb Khan Hayat Khan,Age 72 yrs., Occ. Pensioner,R/o Khatakpura, Beed,Tq. & Dist. Beed. … Respondents...Mr. G.R. Syed, Advocate for applicantMr. A.D. Wange, APP for respondent No.1Mr. T.R. Quadri, Advocate for respondent No.2...WITHCRIMINAL APPLICATION NO.4282 OF 20231Wajahat Ashraf Baig,Age 30 yrs., Occ. Service,R/o Khasbagh, beed,Tq. & Dist. Beed.
Legal Reasoning
236_Cri.Appln_3441_2023+22Farida Begum w/o Ashraf Baig,Age 44 yrs., Occ. Household,R/o Khasbagh, beed,Tq. & Dist. Beed. … Applicants… Versus …1The State of MaharashtraThrough City Police Station,Beed, Tq. & Dist. Beed. 2Naseeb Khan Hayat Khan,Age 72 yrs., Occ. Pensioner,R/o Bungalow of Hamid Chaus,Near Meraaj Masjid, Shahenshah Nagar,Beed,Tq. & Dist. Beed. … Respondents...Mr. C.V. Dharurkar, Advocate for applicants in Appln/4282/2023 andAppln/2063/2024Mr. A.D. Wange, APP for respondent No.1 in Appln/4282/2023 andAppln/2063/2024Mr. T.R. Quadri, Advocate for respondent No.2 in Appln/4282/2023 andAppln/2063/2024...WITHCRIMINAL APPLICATION NO.2063 OF 2024...CORAM :SMT. VIBHA KANKANWADI &SANJAY A. DESHMUKH, JJ.DATE:07th FEBRUARY, 2025 336_Cri.Appln_3441_2023+2ORDER :( PER : SMT. VIBHA KANKANWADI, J. )1Criminal Application No.3441 of 2023 and Criminal ApplicationNo.4282 of 2023 have been filed initially for quashing First InformationReport vide Crime No.161/2023 dated 23.07.2023 registered with City PoliceStation, Beed, Tq. & Dist. Beed and by way of amendment for quashingproceedings in Summary Criminal Case No.1628/2023 pending beforelearned Judicial Magistrate First Class, Beed, for the offence punishableunder Sections 323, 447, 504, 506 read with Section 34 of the Indian PenalCode, 1860. 2Heard learned Advocates Mr. G.R. Syed and Mr. C.V. Dharurkarfor applicants, learned APP Mr. V.K. Kotecha for respondent No.1 and learnedAdvocate Mr. T.R. Quadri for respondent No.2 – informant, in respectivematters. In order to cut short, it can be said that they have argued in supportof their respective contentions. 3The informant had lodged said First Information Report on23.07.2023 in respect of an incident that had allegedly taken place on21.07.2023. He has stated that he stays alone, however, his wife and sonsreside at a different place along with other members of family. Around 11.00p.m. on 21.07.2023 he heard that somebody is calling outside, therefore, he 436_Cri.Appln_3441_2023+2went outside the house, where he saw applicants. He asked them, as to whythey have come at night time, at that time, accused Ashraf asked him to goaway as he has made encroachment on their property otherwise he shouldsuffer the dire consequences. Accused Ashraf Baig then caught hold of theneck of informant and started abusing him. Accused Rizwan twisted his righthand and slapped him. When the informant shouted, his neighbours YakubAbed Shaikh and Irfan came near him. Therefore, while going the accusedthreatened him to kill. 4From the perusal of said First Information Report it can be seenthat only Section 447 of the Indian Penal Code was the cognizable offenceand, therefore, we had considered the spot panchnama and as per the saidpanchnama, the spot was shown by the informant himself. There is a sketchalso drawn. Towards East side there appears to be two doors to the houseand to the structure behind it the doors are towards South. There is then theopen space. Towards West it is shown that there is Urdu School of MirzaAshraf Baig and his house i.e. the house of accused No.1. However, theopening of his house is not towards the East. Therefore, he cannot directlygo in the open space of the informant and further towards the South there isa Nala. It appears that from the East-West strip towards South of theinformant the accused and his family members would have been going 536_Cri.Appln_3441_2023+2towards the Eastern road but the spot of incident is to the back side of thesecond structure of the house. When the opening is towards South and East,why anybody would go towards the back side i.e. on the Western side, whenthere is no opening or door towards West. Therefore, the spot panchnamadoes not support the contention of informant. In the First Information Reportit is then stated that when the informant shouted, his two neighbours came.Shaikh Abed Shaikh Latif and Shaikh Irfan Shaikh Liyakat are the twopersons who have been shown to be the eye witnesses. Perusal of statementsof these two persons under Section 161 of the Code of Criminal Procedurewould show that the incident had taken place in front of the house ofinformant and when they were going from Katkatpura, Beed Road. The roadwhich is shown in the map appended to the spot panchnama shows that theroad is North-South and towards East. As aforesaid, the doors of the houseof the informant are towards East and South for the two separate structures.If these two eye witnesses were going from the road towards East side, thenthe spot of the Western side is absolutely not visible. 5It appears that accused Ashraf had filed civil suit against oneZahrunissa Begum Abdul Salam Deshmukh, which was then compromised. Itwas in respect of specific purpose of the contract and it is stated to be thesame property where the informant states that he is residing. However, we 636_Cri.Appln_3441_2023+2will not go in those facts of the case which might be then disputed and towhich the informant was not a party. 6Thus, perusal of contents of charge sheet would show that exceptthe bare statements of informant there is nothing and the incident appears tobe improbable. Continuation of the proceedings would be an abuse ofprocess of law. As aforesaid, except Section 447 of the Indian Penal Code theother offences are non cognizable and, therefore, in the entirety theproceedings and First Information Report needs to be quashed and set aside.Applications deserve to be allowed. Hence, following order. ORDERi)Criminal Application No.3441 of 2023 and Criminal ApplicationNo.4282 of 2023 stand allowed.ii)Proceedings in Summary Criminal Case No.1628/2023 pendingbefore learned Judicial Magistrate First Class, Beed arising out of FirstInformation Report vide Crime No.161/2023 dated 23.07.2023 registeredwith City Police Station, Beed, Tq. & Dist. Beed, for the offence punishableunder Section 323, 447, 504, 506 read with Section 34 of the Indian PenalCode, 1860, stands quashed and set aside as against applicant Rizwan Zafar 736_Cri.Appln_3441_2023+2Abdul Salam Deshmukh in Criminal Application No.3441 of 2024 andapplicants 1) Wajahat Ashraf Baig and 2) Farida Begam w/o Ashraf Baig inCriminal Application No.4282 of 2023.iii)Criminal Application No.2063 of 2024 stands disposed of. ( SANJAY A. DESHMUKH, J. )( SMT. VIBHA KANKANWADI, J. )agd