1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL WRIT PETITION NO.5/2010 Farzanabi Sayyed Hasan, age 20 yrs, Occ. Household, R/o at present c/o Shaikh Salik Shaikh Yasin, Baherpura, Pachora, Tq. Pachora, Dist. Jalgaon. Petitioner V E R S U S 1- The State of Maharashtra (through Home Ministry Mantralaya, Mumbai.) 2- Superintendent of Police, Jalgaon S.P. Office Jalgaon (R-1 and 2 to be served through Govt. Pleader, Bombay High Court, A’bad Bench.) 3- Kiran Dhatratre Police Inspector, Age major, Occ. Service, Police Station, Pachora, Dist. Jalgaon. 4- Suresh Raghunath Patil, Police Head Constable, age major, Occ. Service, Police Station, Pachora, Dist. Jalgaon. 5- Sanjay Ganpati Kulkarni, Police Constable, age major, Occ. Service, Police Station, Pachora, Dist. Jalgaon. 6- Shaikh Mustaq Shaikh Isa A.S. Inspector, age major, Occ. Service, Police Station, Pachora, Dist. Jalgaon. 2 7- Sayyed Hasan Sayyed Shabbir, age major, Occ. Business, 8- Sayyed Shabbir Sayyed Ibrahim, age major, Occ. Business. 9- Mehrajbi Shaikh Shabbir, age major, Occ. household. 10- Sayyed Hussain Sayyed Shabbir, age major, Occ. Business. 11- Sayyed Afsar Sayyed Shabbir, age major., Occ. Education Deleted as per court order dt 20.4.2010 in C.A.1428/2010. All r/o Dream complex, A-3002, Kongaon, Kalyan (West), Dist. Thane. 12- Firozabi Shaikh Sharif, age major, Occ. Household, R/o Chikhlibaug, Kalyan, District Thane. 13- Raisbi Shaikh Salim age major, occ. Household, R/o Dreamland Complex, A-3002, Kongaon, Kalyan (West), District Thane. 14- Nafisabi Shaikh Salim, age major, Occ. Household, R/o Chikhlibaug, Kalyan, District Thane. 15- Anisabi Shaikh Shakil, age major, Occ. Household, R/o Chembur, Mumbai. 16- Ratnabi Sayyed Yasin, age major, Occ. Household, 3 17- Sayyed Gafoor Sayyed Yasin, age major, Occ. Business, R/o Chikhlibaug, Kalyan, District Thane. Respondents. Mr. Javed R. Shaikh Advocate for the petitioner. Mr. Sonwane, A. P. P. for the Respondent No.1 to 6. Mr. P.P. Chavan, Advocate for the respondent No. 7 to 10, 12 to 17. CORAM : S. B. DESHMUKH & S.S. SHINDE, JJ. DATE : 21ST APRIL, 2010. ORAL JUDGMENT :- (PER S. B. DESHMUKH, J. ) 1. We heard learned counsel Mr. Javed Shaikh for petitioner, learned A.P. P. Mr. Sonwane for respondents No. 1 to 6, Advocate Mr. P. P. Chavan for respondents No.7, 8, 9, 10 and 12 to 17. Respondent No.11 has been deleted with the leave of this Court. 2. Rule. Rule made returnable forthwith. Heard finally with the consent of the parties. 3. Counsel appearing on behalf of the petitioner, took us through the Regular Criminal Case No.272/209 annexure ‘A’ annexed with the petition. Present petitioner is the complainant in that criminal case pending before learned Judicial Magistrate First Class, Pachora, Tq. Pachora, District Jalgaon. Petitioner-complainant alleges that offence 4 under section 498-A, 307, 323, 504, 506 r.w. 34 of Indian Penal Code has been committed by the accused persons, who are named in RCC No. 272/2009 annexure ‘A’. There are about 11 accused persons in that complaint. Counsel appearing for the petitioner, took us to paragraph No.14 of the complaint. This complaint seems to have been filed by the present petitioner-complainant in the court of learned Judicial Magistrate First Class, Pachora on December 24, 2009. Counsel for the petitioner points out order passed by Judicial Magistrate First Class, Pachora on December 24, 2009. This order has been passed by learned Judicial Magistrate First Class, Pachora directing registration of the offence against accused persons as per section 156 (3) of the Code of Criminal Procedure. There is no dispute among the counsel appearing for the parties that this order has attained finality. 4. Order passed by the learned Judicial Magistrate First Class, Pachora on December 24, 2009 under section 156 (3) of the Code of Criminal Procedure was served to the Police Station concerned. Matter was handed over for investigation to respondent No.4. Respondent No.4, has registered the offence at Cr. No.137/2009 on December 26, 2009. This offence is registered against around 11 accused persons under section 498-A, 323, 504, 506, 408 r.w. 34 of Indian Penal Code. Copy of the First Information Report annexure ‘B’ is on record. It appears that investigation was handed over to Head Constable B. No.1341, 5 respondent No.4. 5. Grievance raised by the petitioner is within narrow compass. According to the counsel for the petitioner, learned Judicial Magistrate First Class, Pachora directed the registration of offence, however, respondent No.4 did not register the offence under section 307. According to him, offence under section 307 has taken place in the case on hand. For this proposition, he took us to paragraph No.14. Allegation of em-poisoning to present petitioner is made. This allegation is made against accused Nos. 1 to 4 and 9 who are respondents No.7,8,9, 10 and 15 in this criminal writ petition. 6. Action of respondent No.4 is justified by learned A. P. P. Mr. Sonwane. Affidavit sworn in by respondent No.4 is placed on record. Learned A. P. P. took us to paragraph No.4 of the affidavit. It is contended in this paragraph that on receipt of the order from the learned Judicial Magistrate First Class, Pachora, offence is not registered against accused persons except 307. Reason for non registration of offence under section 307 of Indian Penal Code, according to respondent No.4, is non disclosure of such offence by the complainant before the respondent No. 4, while recording statement. 7. Mr. Javed Shaikh counsel for the petitioner relies on the judgment of the Honourable Supreme Court in the matter of Madhu Bala 6 Vs. Suresh Kumar and others reported in AIR 1997 S. C. 3104. We have seen paragraphs No.7, 8, 10 and 13. 8. We have also heard learned counsel Mr. Chavan, who appears for respondents No.7 to 10 and 12 to 17. According to him, respondent No.4, has justifiably not registered the offence under section 307 of the Indian Penal Code. 9. Having given due consideration to the submissions made on behalf of the parties before us, in our view, non registration of the offence under section 307 r.w. 34 of Indian Penal Code against respondents No.7, 8, 9, 10 and 15 is per-say illegal. It is not scope, power and jurisdiction of the head Constable i.e. Investigating Officer to say that there is no whisper of allegation for registration of the offence under section 307 of Indian Penal Code against respondents No. 7 to 10 and 15 in the statement of complainant. In our view, petition requires to be allowed in part. Counsel for the petitioner raised grievance against respondents No. 2 to 6 for arraying as respondents in his personal capacity. 10. Having considered the submissions of counsel for the petitioner and learned A.P.P. in our view, in the case on hand no order is required to be passed against respondents No.2,3,5 and 6. 7 11. Criminal Writ Petition, therefore, is partly allowed. Respondents No.1 and 4 are directed to take necessary steps for addition of offence under section 307 of Indian Penal Code in view of the order passed by Learned Judicial Magistrate First Class, Pachora on December 24, 2009. We make it clear that these are the observations made by this Court at this stage. We have not expressed our opinion to merits. In other words, respondents No. 7 to 10 and 15 after addition of the offence under section 307 of Indian Penal Code to be tried in accordance with the provisions of Law. Writ Petition, accordingly partly allowed in above terms and disposed of without any order as to costs. Rule is made absolute in above terms. ( S.S. SHINDE ) ( S.B.DESHMUKH ) JUDGE JUDGE. aaa/5.10 .......