MOHAMMAD HISHAM OSMANI Vs. STATE OF MAHARASHTRA
LAWS(BOM)-2017-4-29
HIGH COURT OF BOMBAY (AT: STATE)
Decided on April 06,2017

Mohammad Hisham Osmani Appellant
VERSUS
STATE OF MAHARASHTRA Respondents

JUDGEMENT

K.K. Sonawane, J. - (1.) Rule. Rule made returnable forthwith. Heard finally by consent of parties.
(2.) The applicant has preferred the present application under Section 482 of the Cr.P.C. seeking to exercise the inherent jurisdiction of this court to quash and set aside the FIR bearing No. 321 of 2016 registered against the applicant and others at City Chowk police station, Aurangabad, for the offence punishable under sections 420,425, 465, 468, 471, 204, 417, 120-B r/w. 34 of IPC. The applicant agitated the validity, legality and propriety of the impugned FIR being subsequent FIR of the same offence and the same set of allegations as contained in the earlier FIR bearing Crime NO. 271 of 2014 registered at City Chowk police Station, Aurangabad, following the directions of the learned Magistrate dated 3.11.2014 under Section 156(3) of the Cr.P.C. in private complaint proceeding vide Criminal M.A. No. 2247 of 2014 initiated at the behest of the respondent No. 2 - Rafik Ahmed s/o. Mohd. Usman.
(3.) The genesis of the application culled out in brief is as under:- [a] That,the contentious land Gat No.11 admeasuring 2H 3R, located at village Georai, Taluka Aurangabad was the ancestral property of respondent No.2 Rafik Ahmed s/o. Mohd. Usman. It has been alleged that the father of the respondent No.2 has executed the document of sale deed of contentious land in favour of one Yusuf Ali Kurban Hussain by way of security. After the death of Yusuf Ali, his son Mohd. Yusuf Ahmed persuaded the proceeding for mutation of his name in the revenue record. The concerned Tahsildar after appreciating the circumstances and objections raised on behalf of respondent No. 2 mutated the name of Mohd. Yusuf in the revenue record being the purchaser of property. The respondent No.2 approached to the higher authority against the mutation allowed by the concerned Tahsildar but the respondent No.2 did not succeed in his attempt. Eventually, he filed Civil proceeding bearing RCS No.1131 of 2001, for cancellation of sale deed executed by his father in favour of Yusuf Ali. In the meantime, Yusuf Ali's widow - Hussainabee alienated the contentious suit land Gat No.11 in favour of the applicant for consideration by executing a registered sale deed. Accordingly, the applicant approached to the revenue authority for mutation of his name in the revenue record but he came to know about the civil litigation initiated by the respondent No.2 for cancellation of original sale deed executed in favour of Yusuf Ali - husband of Hussainabee. The applicant intervened in the litigation and got the ex-parte decree passed in favour of respondent No.2 set aside and quashed. [b] There was a chequered history of litigation relating to contentious suit land Gat No.11, but the respondent No.2 failed to obtain favourable order from the Court of law. Meantime, in the year 2008, after ex-parte decree in favour of respondent No.2, his name came to be mutated in the revenue record for the contentious land Gat No.11 of village Georai, Tahsil Aurangabad. But, after setting aside the ex-parte decree from the Court, the applicant approached to the revenue authority to get his name mutated in the revenue record. The concerned revenue authority, appreciated the circumstances and after obtaining opinion from the concerned DGP, mutated name of the applicant in the revenue record. Being dissatisfied with the mutation entry of the applicant in the revenue record by the concerned Tahsildar and Talathi, the respondent No.2 rushed to the City Chowk police station and ventilated the grievances against the revenue personnel and the applicant. But the allegations nurtured on behalf of respondent No.2 Rafik Ahmed were of civil in nature, the police authority found reluctant to act upon the complaint of the respondent No.2 Rafik Ahmed and advised him to take recourse of the Court of law. Therefore, the respondent No.2 approached to the Court of learned Magistrate and filed private criminal complaint u/sec. 200 of Cr.P.C. bearing Criminal Miscellaneous Application No. 2247 of 2014 alleging that the so called accused prepared and fabricated fake and bogus documents, to grab the land of the complainant. The accused also tampered with the Government record maintained and preserved in the office of the revenue personnel and committed the offence of forgery and cheating etc. [c] The learned Magistrate considered the facts and circumstances as well as nature of allegations nurtured against the revenue personnel and applicant, and proceeded to direct the police of City Chowk police station for investigation under Section 156(3) of the Cr.P.C. Pursuant to the directions of the learned Magistrate dated 03-11-2014 the police of City Chowk police station registered the FIR bearing No. I-271 of 2014 for the allegations of criminal conspiracy, forgery, cheating etc. and set the penal law in motion, The concerned IO recorded the statements of witnesses acquainted with the facts of the case and collected the relevant documents. Eventually, IO, arrived at the conclusion that there was no substance in the allegation for any sort of penal action against so called accused. Therefore, the concerned I.O. preferred "B " Summary Report under section 173 of Cr.P.C. before the learned Magistrate. [d] Respondent No.2 raised the objection by his protest application to the "B Summary Report " on behalf of the concerned police of City Chowk Police Station. The learned Magistrate did not allow to close the proceeding by accepting "B " summary report and once again forwarded the complaint to ACP(Crime) with directions to appoint senior inspector for further investigation into the matter. Accordingly, the ACP (Crime) appointed the Senior Police Inspector of MIDC police station to carry out the investigation and to submit the report. The senior PI of MIDC police station conducted the investigation and found no substance in the allegation for criminal action. He preferred to close the proceeding by filing "B " Summary Report for want of concrete evidence. But, it was also not accepted by the learned Magistrate and again, the matter was referred to the Senior Police personnel for investigation afresh. At this juncture also, there was no change in the circumstances found available on record and the attending circumstances constrained the police authorities to once again prefer "B " Summary Report, as the charges against the applicant and revenue authorities were of civil in nature. [e] However, the learned Magistrate came across with the circumstance that complainant - Rafik Ahmed had filed an application on 28.4.2014 and 29.4.2014 to the Tahsildar, Aurangabad pertaining to mutation of his name in the 7 x12 extract on the basis of ex-parte decree passed in his favour. But, the concerned revenue officer, in connivance with the applicant tampered with the Government record and took the entry of applicant's name in the 7/12 extract on the basis of forged documents. According to complainant, the applicant and other revenue personnel committed mischief of forgery and cheating etc. The learned Magistrate verified the allegations of tampering of Government documents, cheating, forgery etc, and proceeded to issue process against the applicant under section 204 of Cr.P.C. The learned Magistrate refused to initiate penal action against the revenue personnel for the allegations cast on behalf of complainant, for want of prosecution sanction. [f] Being aggrieved by the impugned order of issuance of process, the applicant - Mohd. Hisham Osmani s/o. Yusuf Osmani, approached to the Sessions Court and filed Criminal Revision Application NO. 166 of 2016 to set aside the impugned order of issuance of process, interalia, the applicant also preferred an application for interim relief to stay the impugned order. The learned Sessions Judge, after appreciating the circumstances on record was pleased to grant stay to the order of issuance of process against applicant vide his order dated 26.8.2016. [g] Meanwhile, respondent No.2 procured the relevant documents from office of Tahsildar, Aurangabad and it was found that the applicant, hatched the conspiracy with the revenue personnel and prepared the fake and spurious documents and shown these documents were issued by the concerned Tahsildar, to deprive the complainant to mutate his name in the revenue record. Therefore, he once again rushed to the City Chowk police station and filed another FIR bearing No. 321 of 2016, under Section 420, 425, 465,468, 471, 120-B, r/w. 34 of IPC. It has been alleged that the applicant hatched criminal conspiracy with revenue personnel and forged and tampered the revenue documents during the period 22.12.2014 to 16.5.2016, with an intention to cause loss to the first informant and to grab his ancestral property Gat No.11 of village Georai Taluka Aurangabad. Accordingly, the City Chowk police station registered the another crime and once again swung into action for collection of evidence against the applicant. The impugned FIR is the subject matter of the present application.;


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