Nijamoddin Mohamad Khan And Others vs The State Of Maharashtra And Another

2026:BHC-AUG:18086
Cri-Apeal-872-2025.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.872 OF 2025
1. Nijamoddin Mohamad Khan
Aged: 58 years, Occu. Business,
R/o Deoka Malaka Kuwarpur
Nainital – Uttarakhand.
2. Taher Hussain Shaikh
Age: 39 years, Occ. Agri & Business,
3. Aleem Saleem Shaikh
Age: 29 years, Occ. Agri & Bisiness,
4. Shaikh Shoeb Shaikh Chand
Age: 24 years, Occ. Agri & Business,
Appellants No. 2 to 4 R/o. Plot No.24,
M-Sector, N-6 CIDCO, Chh. Sambhajinagar
5. Akhtar Hussain Hasmllah Chaudhary
Age: Major, Occ. Business,
R/o. Plot No.201, South City, Tisgaon,
Tal & Dist. Chh. Sambhajinagar,
6. Shaikh Suleman Abdul Kadar
Age: 55 years, Occ. Business,
7. Shaikh Chand Abdul Kadar
Age: 60 years, Occ. Business,
Appellant No. 6 and 7 R/o. Plot No.24,
M-Sector, N-6, CIDCO, Chh. Sambhajinagar,
8. Mohd. Mufid Nathani Mohd Riyaj Nathani
Age: 31 years, Occ: Business,
R/o. Navin Mondha, Aurangabad … APPELLANTS
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VERSUS
1. The State of Maharashtra
Through Police Inspector, MIDC Waluj
Police Station, Chh. Sambhajinagar
2. Laxminarayan Chotelal Rathod,
Age: 62 years, Occ: Business,
R/o. Thakur Niwas, Giriraj Hsg.
Society, Pandharpur, M.I.D.C.,
Waluj, Aurangabad … RESPONDENTS
.…
Mr. Shaikh Ashraf Patel, Advocate for the Appellant
Mr. S. S. Dande, APP for Respondent No.1 - State
Mr. U. L. Telgaonkar, Advocate for Respondent No.2 (Appointed
through the Legal Aid)
.…
CORAM : Y. G. KHOBRAGADE, J.
RESERVED ON
PRONOUNCED ON
:
:
April 06, 2026
April 20, 2026
JUDGMENT :-
1. Heard Mr. Shaikh Ashraf Patel, the learned counsel for the
Appellant, Mr. Dande, the learned APP for respondent No.1 and Mr.
Telgaonkar, the learned counsel for respondent No.2.
2. By the present appeal under Section 14-A of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,
1989, the appellant / accused takes exception to the order dated
16.05.2025 passed in Criminal M. A. No.170 of 2024 by the learned
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Special Court (SC & ST Act), Aurangabad, whereby the process
against the present appellant i.e. original accused Nos. 1 to 7, 9 and
10 are issued for the offence punishable under Sections 3(1)(f) and
3(1)(g) of the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act.
3. The present appellants are the original accused Nos. 1 to
7, whereas the appellant No.8 is the original accused No.9 and
respondent No.2 is the original complainant in Criminal M.A. No.179
of 2024.
4. Respondent No.2 has filed Criminal M.A. No.179 of 2024
and claimed that he is the General Power of Attorney holder of one
Fakiri Kisan Gangave, who is the member of Scheduled Tribe. The
said Fakiri Kisan Gangave was having land bearing Gut No.311
Survey No.191, admeasuring 25 Acres and 25 Gunthas at village
Waluj (Bk). The said land of Fakiri Kisan Gangave is directed under
Section 36 of the Maharashtra Land Revenue Code. As per the
revenue record 7/12 extract, the accused No.1 / appellant No.1 in
collusion with revenue authorities carried out mutation pretending
that he had purchased the land from said Fakiri Kisan Gangave by
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giving false description of field boundaries. According to the
complainant / respondent No.2, the appellant No.1 / accused No.1
encroached upon the land of said Fakiri Kisan Gangave and created
false and fabricated sale-deeds about the said field with an intention
to deceive said Fakiri Kisan Gangave. So also, the accused /
appellants are trying to grab the land of Fakiri Kisan Gangave,
allotted to her. Therefore, the appellants / accused have committed
an offence punishable under Section 3(1)(f) of the Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act. Further, the
accused with their common intention, disposed off the land of triable
and interfered with peaceful possession over the land of the tribal
person. Therefore, the appellant / accused have committed the
offence under Section 3(1)(g) of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act.
5. On 16.05.2025, the learned trial Court passed the
impugned order and issued process against the present appellants /
accused for the offence 3(1)(f) and 3(1)(g) of the Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act. Being aggrieved
by the said order, the present appellants filed the present appeal.
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6. The learned counsel appearing for the appellants
canvassed that respondent No.2 is the complainant. However, he
does not belong to Scheduled Tribe community. Respondent No.2
complainant pleaded that he is the General Power of Attorney of one
Fakiri Kisan Gangave, who is the member of Scheduled Tribe
Community. However, Fakiri Kisan Gangave has not filed complaint.
Therefore, the complaint at the behest of respondent No.2, is not
maintainable. Therefore, the learned trial Court could not consider
the locus standi of respondent No.2 to file the said complaint.
However, without considering the locus of the present respondent
No.2, the learned trial Court passed the impugned order and issued
process against the present appellants / accused for the offence
punishable under Section 3(1)(f) and 3(1)(g) of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act.
7. It is further canvassed that, the learned trial Court called
the report under Section 202 of Cr.P.C. from the Investigating Officer.
Accordingly, the Investigating Officer sought information from the
Sub-Registrar, Gangapur who informed that no permission of the
Collector is required to sale purchase land of Gut No.311, Survey
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No.191 of village Waluj (Bk), Taluka Gangapur, as the said land is
Class-1 land as per the revenue record of 7/12 extract. The Sub-
Registrar further informed that 75 R land standing in the name of
Fakiri Kisan Gangave is subject to Section 36 and 36A of the
Maharashtra Land Revenue Code as per the order passed by the
learned Sub-Divisional Officer, Vaijapur and as per the revenue record
i.e. Khasra Pahani and 7/12 extract, the land admeasuring 3 Hectare
22 R is standing in the name of appellant No.1 / accused No.1
Nijamoddin Mohammad Khan and the said land is not tribal land.
Therefore, there is no ingredients are absent to constitute an offence
punishable under Section 3(1)(f) and 3(10)(g) of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act. However,
the learned trial Court failed to consider the said legal aspect of the
matter and passed the impugned order in mechanical manner, hence,
prayed for quashing and setting aside the same.
8. Per contra, the learned counsel for respondent No.2
canvassed in vehemence that the present appellant / accused in
collusion with the revenue authorities, transferred the tribal land
without permission of the revenue authorities i.e. Collector under
Section 36 and 36A of the Maharashtra Land Revenue Code of the
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tribal person Fakiri Kisan Gangave. So also, in furtherence of their
common intention, knowingly the said Fakiri Kisan Gangave is of
Scheduled Tribe category, her land was transferred without prior
permission and intentionally inserted and intimidated in the public
view. Therefore, as per the provisions of Section 3(1)(f) and 3(1)(g)
of the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, the offence is constituted and the learned trial Court
passed the impugned order on 16.05.2025 and issued process against
the appellant / accused which is just and proper and no interference
is called to justify the impugned order, hence prayed for dismissal of
the appeal.
9. It is a matter of record that, respondent No.2 is the
General Power of Attorney of one Fakiri Kisan Gangave. It is not in
dispute that said Fakiri is the member of Scheduled Tribe community.
As per the 7/12 extract, 75 R land out of Gut No.311 is standing in
the name of Fakiri Kisan Gangave. According to the appellants /
accused, total 25 Acres and 25Gunthas of agricultural land bearing
Gut No.311 Survey No.191 of village Waluj (Bk), stands in the name
of owner Fakiri Kisan Gangave. However, the said land has been
transferred without permission of the revenue authority i.e. Collector
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under Section 36 of the Maharashtra Land Revenue Code. The
present respondent No.2 who is the General Power of Attorney holder
of Fakiri Kisan Gangave stated about pending of suit for perpetual
injunction before the learned Civil Judge Junior Division, Gangapur
against the accused No.1 / appellant No.1 Nijamoddin Mohamad
Khan. Though the present respondent No.2 alleged that the land of
Fakiri Kisan Gangave, the member of Scheduled Tribe, has been
transferred illegal by the appellant No.1 / accused No.1, however the
said Fakiri Kisan Gangave is not party complainant to the complaint.
Further, respondent No.2 / complainant has not filed the said
complaint through the original land owner Fakiri Kisan Gangave. No
doubt, the present respondent No.2 / informant claims that he is the
General Power of Attorney Holder for Fakiri Kisan Gangave. However,
as per the power of attorney, it does not appear that the present
respondent No.2 / complainant is authorised to file criminal
complaint on behalf of Fakiri Kisan Gangave, the member of tribal
community. Therefore, to my mind, the present respondent /
complainant is having no locus to file such complaint.
10. As per the law dictionary, the meaning of the word "By"
used to signify that an act was performed directly by a person or
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authorised community, often under its own power or as an authorized
officer in a company. Therefore, it denotes that the person singing or
acting is the immediate agent or the community itself. The words "on
behalf of", indicates that an individual is acting as a representation for
another person or community (the member). It implies an agency
relationship.
11. In the case in hand, though respondent No.2 informant
alleged that the land of Fakiri Kisan Gangave has been transferred by
the present appellant No.1 / accused No.1 without prior permission of
the revenue authority i.e. Collector under Section 36 of the
Maharashtra Land Revenue Code. However, the said fact is required
to be stated by the owner of the land who is the member of
Scheduled Tribe. However, the said member of Scheduled Tribe did
not come forward to lodge the complaint. Therefore, it itself creates
purpose about the locus of the present respondent No.2 /
complainant to lodge the said complaint.
12. Needless to say that, as per the scheme of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, the said
findings are constituted against the non scheduled caste or scheduled
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tribe person if any act which is provided under Section 3 of the Act is
done by the member of other community than the scheduled castes /
scheduled tribes. Therefore, the said findings are not "rem". No
doubt, as per the provisions of Section 154 of Cr.P.C., any person can
said wheel of criminal law in motion if cognizable offence is made
out. However, In the circumstances of the present case, it appears
that the present respondent No.2 is trying to canvass that the
appellants / accused persons have committed offence under Section
3(1)(f) and (1)(g) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, though the victim has not come
forward and no any such complaint is lodged by her.
13. Nonetheless, it further submits that, the learned trial
Court passed an order under Section 202 of Cr.P.C. and called the
report from the concerned Investigating Officer. Accordingly, the
Investigating Officer submitted report stating that as per the report of
the Sub-Registrar, Gangapur, no permission of the Collector is
required for sale / purchase of the land bearing Gut No.311 as the
said land is Class-1 land as per the entries in the revenue record 7/12
extract. The Sub-Registrar further informs that the land 75 R standing
in the name of Fakiri Kisan Gangave is subject to permission under
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Section 36 and 36A of the Maharashtra Land Revenue Code. In view
of the decision of the learned S.D.P.O., Vaijapur, it is further informed
that Khasra Pahani extract and 7/12 extract did not appear that the
land admeasuring 3 Hectare 22 R, which is standing in the name of
accused No.1 Nijamoddin Mohammad Khan is "either Scheduled
Caste community holder or tribal holder land". Therefore, if there is
any contravention of Sections 36 and 36A of the Maharashtra Land
Revenue Code, the Collector, i.e., the revenue authority, has the
power to initiate appropriate proceedings under the Maharashtra
Land Revenue Code in respect of any transfer of tribal land made in
violation of the provisions of Sections 36 and 36A of the said Code.
However, respondent No.2 has not brought any substantial material
on record to show that the land which is subject matter of the
complaint is prohibited under Section 36 and 36A of the Maharashtra
Land Revenue Code. Therefore, to my view, the offence under
Section 3(1)(f) and 3(1)(g) does not constitute. However, the
learned trial Court overlooked the provisions of law as well as the
contents of the complaint, passed the impugned order which is not
sustainable in the eyes of law. Accordingly, the impugned order is
liable to be quashed and set aside.
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14. In view of above discussion I proceed to pass the
following order:-
O R D E R
(i) The Criminal Appeal is allowed.
(ii) The impugned order dated 16.05.2025, passed by the learned
Special Judge (SC & ST Act), Aurangabad in Criminal M.A. No. 179 of
2024 is hereby quashed and set aside.
(iii) The complaint bearing Criminal M.A. No.179 of 2024 is
hereby dismissed. No order as to costs.
(iv) The fees of the appointed counsel Mr. U. L. Telgaonkar,
shall be quantified as per rules and be paid by the High Court Legal
Services Sub-Committee, Aurangabad.
[ Y. G. KHOBRAGADE, J. ]
SMS
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