Gujarat High Court
Qureshabanu W/O Mohammadtaqui Kureshi vs State Of Gujarat & 2 on 16 February, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/9021/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 9021 of 2016
==========================================================
QURESHABANU W/O MOHAMMADTAQUI KURESHI....Applicant(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
==========================================================
Appearance:
MR ZUBIN F BHARDA, ADVOCATE for the Applicant(s) No. 1
MS NISHA THAKORE, APP for the Respondent(s) No. 1
MR VIKAS NAIR, ADVOCATE for the Respondent No.2
==========================================================
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 16/02/2017
ORAL ORDER
1 By this writ application under Article 226 of the Constitution of India, the writ applicant - original first informant has prayed for the following reliefs:
"11A. That this Honourable Court may be pleased to admit this petition.
B. That this Honourable Court be pleased to direct the state respondents more particularly the respondent nos.2 and 3 to comply with the directions issued by this Hon'ble Court dated 19.10.2016 in Special Criminal Application No.7735/2016 and further direct the Investigating Officer i.e. Police Inspector of Danilimda Police Station who is heading the investigation to add relevant sections including Sections 326, 392, 394 and 397 of the Indian Penal Code amongst other sections which are applicable and required to be charged considering the serious assault committed on the husband of the petitioner coupled with a loot carried out by accused by forming an unlawful assembly and direct the Investigating Officer to arrest the principal accused in connection with the aforesaid offences. This Hon'ble Court may further be pleased to direct the Commissioner of Police, Ahmedabad to monitor the investigation that is Page 1 of 4 HC-NIC Page 1 of 4 Created On Sun Aug 13 16:48:43 IST 2017 R/SCR.A/9021/2016 ORDER being carried out by the respondent no.3 in the interest of justice.
C. This Honourable Court be pleased to pass such other and further orders, as this Honourable Court may deem fit and proper in the facts and circumstances mentioned above.
D. This Honourable Court be pleased to award costs of this petition."
2 It appears from the materials on record that the husband of the writ applicant, namely, Mohammadtaqui Mohamad Umarbhai Qureshi, residing at Saiyed Apartment, Shakti Society, Danilimda, Ahmedabad, lodged a First Information Report dated 11th September 2016 against the eight persons being IC.R. No.72 of 2016 at the Danilimda Police Station, Ahmedabad for the offence punishable under Sections 325, 324, 323, 294B, 427, 506(2) read with 114 of the Indian Penal Code and Section 135(1) of the Indian Penal Code.
3 The husband of the writ applicant is engaged in the business of selling of chicken. He has a shop situated near Danilimda Allahnagar. He is running a shop in the name of 'Lucky Chicken Centre'. It is alleged that on 10th September 2016, the accused persons came at his shop in a 'Toyota Fortuner' and asked for chicken. They refused to make the payment of the chicken. In the past also, the accused persons had taken away chicken without making any payment. On the date of the allged incident, the first informant resisted. As a result, there was an altercation and the altercation led to an assault. It is alleged that one of the accused persons picked up a sharp cutting object lying in the shop of the first informant meant for cutting chicken, and inflicted injury on the leg. The medical certificate reveals that it was a deep incised wound on post aspect of leg 12 x 10 x 5 cm cut ends of muscle seen. It is further alleged that while leaving the spot of the occurrence, they damaged the shop. They took the D.V.R. as well as the two motorcycles. It is further alleged Page 2 of 4 HC-NIC Page 2 of 4 Created On Sun Aug 13 16:48:43 IST 2017 R/SCR.A/9021/2016 ORDER that they took away Rs.3,000/ (Rupees Three Thousand only) from the cash box. All the eight persons were arrested and had been released on bail. I am told that they all have antecedents. One of the accused at present is under the Prevention of Antisocial Activities (PASA) Act. At the end of the investigation, chargesheet was filed for the offences narrated above. The grievance of the writ applicant herein is that the chargesheet should have been filed for the offence punishable under Sections 326, 392, 394 and 397 of the Indian Penal Code.
4 Mr. Vikas Nair, the learned counsel has appeared on behalf of the original accused persons. He pointed out that the case put up by the writ applicant is not in the true version. He pointed out that the case is one of cross F.I.Rs. His client also sustained serious injuries on his hand, for which chargesheet has been filed against the client of Mr. Bharda, for the offence punishable under Section 324 of the Indian Penal Code.
5 Ms. Thakore, the learned A.P.P. appearing for the State submitted that the issue raised by the writ applicant in this writ application in this regard can be taken care of by the trial Court at the time of framing of the charge or even in the course of the trial. Under Section 216 of the Cr.P.C., at any stage, the Court can add or alter the charge. Even at the stage of the framing of the charge under Section 214, the trial Court can appropriately frame the charge of a particular offence.
6 Having heard the learned counsel appearing for the parties and having considered the materials on record, the only questions that falls for my consideration is whether the writ applicant is entitled to any of the reliefs prayed for in this writ application.
7 Section 325 of the Indian Penal Code is with regard to punishment
Page 3 of 4
HC-NIC Page 3 of 4 Created On Sun Aug 13 16:48:43 IST 2017
R/SCR.A/9021/2016 ORDER
for voluntarily causing grievous hurt. Grievous hurt has been explained in Section 320 of the Indian Penal Code. Section 326 of the Indian Penal Code talks about voluntarily causing grievous hurt by dangerous weapons or means. If it is the case of the prosecution and the chargesheet has been filed for the offence punishable under Section 325 of the Indian Penal Code, then at least, the injury has been believed to be grievous in nature. In such circumstances and having regard to the nature of the weapon or object used for the purpose of inflicting the injury, it could be said that the same was a dangerous weapon. It was a sharp cutting instrument meant for slaughtering chicken.
8 Since chargesheet has already been filed, this aspect will have to be kept in kind by the trial Court at the time of framing of the charge and the trial Court shall accordingly frame the charge. So far as the other offences are concerned, it will be open for the trial Court to look into those on the basis of the materials on record and take an appropriate decision.
9 As noted above, charge can be added or altered at any stage by the trial Court in exercise of powers under Section 216 of the Indian Penal Code.
10 With the above, this writ application is disposed of.
11 Mr. Bharda, at this stage, clarifies that the crossF.I.R., which Mr. Nair talking about, has nothing to do with his client and in the said F.I.R., none of his clients are accused and chargesheet has not been filed in connection with the said F.I.R.
(J.B.PARDIWALA, J.) chandresh Page 4 of 4 HC-NIC Page 4 of 4 Created On Sun Aug 13 16:48:43 IST 2017