Bombay High Court
Mohammed Iqbal Khan vs The State Of Maharashtra on 3 October, 2023
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.1080 OF 2019
Mohammed Iqbal Khan .... Applicant
versus
State of Maharashtra .... Respondent
.......
• Mr. Sudeep Pasbola i/b. Suleh Nagvadaria, Advocate for Applicant.
• Mr. A. R. Patil, APP for the State/Respondent.
CORAM : SARANG V. KOTWAL, J.
DATE : 03rd OCTOBER, 2023
P.C. :
1. The Applicant has challenged the order dated
09/01/2018 passed by the Metropolitan Magistrate, 18 th Court,
Girgaon, Mumbai, in C.C. No.475/PW/2009 rejecting the
application preferred by the Applicant for stopping of the
proceedings u/s 258 of Cr.P.C. The Applicant has also challenged
the order dated 05/12/2018 passed by the Additional Sessions
Judge, Mumbai, in Criminal Revision Application No.522 of
2018, whereby the learned Magistrate's aforesaid order was
upheld and the Revision Application was rejected.
Nesarikar
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2. Heard Mr. Sudeep Pasbola, learned counsel for the
Applicant and Mr. A. R. Patil, learned APP for the State.
3. The matter has some history. On 23/06/2007 a
building by name Ali Mohammed Mansion collapsed. It was
situated at Grant Road. In that incident, two persons lost their
lives. Therefore, C.R.No.125/2007 was registered on
24/06/2007 u/s 304 (II), 337, 288 r/w 34 of the Indian Penal
Code.
4. During course of investigation, the police wanted to
carry out search in the residence of one Chittalwala. They
arranged two Panchas and went to her house on 26/12/2008. It
is the prosecution case that the present Applicant obstructed the
police officers and by use of force did not permit them to
conduct the search of the house. The police officials filed charge-
sheet against the aforesaid Chittalwala and then filed a
supplementary charge-sheet against the Applicant on
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13/11/2009 and added sections 182, 186 and 353 against the
present Applicant. At the first instance, the learned Assistant
Sessions Judge, Greater Mumbai, vide the order dated
29/12/2010 discharged the Applicant from the charges of
offence punishable u/s 337, 288, 109, 174, 175, 177, 182, 201
and 212 r/w 34 of the Indian Penal Code. Vide a separate order
dated 29/01/2013, the Applicant's case was separated and his
case was sent to 18th Court, Metropolitan Magistrate, Girgaon,
Mumbai. The Applicant preferred an application u/s 258 of
Cr.P.C. in the proceedings. That application was rejected by the
impugned order and the Revision Application was dismissed by
the other impugned order.
5. Learned counsel Mr. Pasbola submitted that the two
incidents dated 23/06/2007 and 26/12/2008 are entirely
separate incidents. As indicated, by the previous orders, the
Applicant is discharged from all the offences connected with the
incident dated 23/06/2007. During course of investigation, the
search was conducted on 26/12/2008 and then the alleged
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incident had taken place. This incident has nothing to do with
the incident of collapse of building and therefore, the police
could not have investigated incident dated 26/12/2008 under
the garb of investigation into the offence registered vide C.R.
No.125/2007. He submitted that therefore the entire
investigation against the present application does not have
sanctity of law and therefore, he could not be prosecuted. He
submitted that u/s 195 of Cr.P.C. there is a bar of taking
cognizance unless a complaint is filed by the concerned public
servant. In this case, there is no such complaint on record.
6. Considering these submissions, learned APP seeks time
to respond to these submissions and produce the relevant record
before the Court. He seeks time. At his request, today I am
adjourning the matter. However, based on the submissions made
by Mr. Pasbola, interim protection can be granted to the
Applicant.
7. Hence, the following order :
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ORDER
(i) Learned APP shall file affidavit-in-reply on or before the next date.
(ii) Till the next date, there shall be stay on the proceedings against the present Applicant, in connection with the present subject matter.
(iii) Stand over to 15/12/2023.
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