Bombay High Court Refuses To Quash FIR Against AIMIM Leader Accused Of Illegally Constructing Public Square In Tipu Sultan's Name

The Bombay High Court refused to quash an FIR registered against All India Majlis-e-Ittehadul Muslimeen (AIMIM) leader and former MLA Farukh Shah accused of illegally constructing a public square in the name of Tipu Sultan in Dhule by allegedly utilizing public funds.

In doing so the court observed that the probe was ongoing to find out as to who had erected the construction and whether permission was taken for the same adding underscoring that public square cannot be named by an MLA without following procedure laid down in law. It also noted that on one hand Shah defended the act of naming the square and on the other hand he was also claiming innocence which cannot go together.

According to the first informant, the applicant had constructed a raised platform without obtaining any permission and named it as 'Tipu Sultan Chowk', and this act on the applicant's part created hatred amongst two communities.

A division bench of Justice Vibha Kankanwadi and Justice Sanjay A Deshmukh in its order said:

"The applicant was elected as M.L.A., as a candidate from a political party. Merely because there is a rivalry, we cannot see the FIR in the tainted manner and the sitting M.L.A. then should secure the document in otherwise manner and should not disclose the source thereof to his Advocate at the time of filing of the Application. We deprecate such practice. The fact is that now the investigation is still going on and who had erected the construction in the chowk, whether permission to construct was obtained or not, whether the funds which were available for M.L.A. were utilized for making that construction, the investigation is underway"

"All the persons including the persons attached to political party are required to obtain construction permission under the local bylaws of the local municipal authority. A public square (chowk), road or place cannot be named by the M.L.A. on his own," the court said adding that there is a procedure under the Maharashtra Municipalities Act as well as Maharashtra Municipal Corporations Act.

As per the Acts a proposal is required to be tabled before the concerned authority i.e. the general body meeting of the elected members and then after the consensus, such place would be named accordingly.

"Now the applicant at one place, i.e. in Ground No. (VIII) of the Application, is supporting the act of naming the square in the name of Tipu Sultan and in Ground No. (IX) he is claiming innocence. Both these acts cannot go together. When the investigation is still going on and from the report of the police it appears that there is some evidence, whether it is connected with the applicant or not would be a different question, but in the said circumstances it cannot be said that this is a fit case where we should exercise our powers under Section 482 of the Code of Criminal Procedure," the court added.

The high court thus refused to quash the FIR and dismissed Shah's plea.

Shah had moved the high court seeking quashing of a 2023 FIR for the offence punishable under offences including Sections 153-A(Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony), 295-A(Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs), 504(Intentional insult with intent to provoke breach of the peace), 505 (1)(Statements conducing to public mischief), 506, 124(A)(Sedition), 120-B(Criminal Conspiracy) IPC, Section 3 and 4 of the Maharashtra Prevention of Defacement of Property Act.

He claimed that offences were not attracted arguing that Tipu Sultan was the freedom fighter of India and great warrior and therefore, giving name of the said person cannot attract any criminal prosecution.

With respect to the question as to how Shah got the supplementary chargesheet when it was not given to anybody the court said,"The facts still remain that when the police officers disclose that there is no such document in existence nor it was given to anybody, the question would still be, as to how either the informant or the applicant got such document. The said Sub Divisional Police Officer, Dhule City has stated that he has ordered an inquiry. We hope that the inquiry would be completed. It is absolutely not proper on the part of a party to produce a document by obtaining the custody of such document in otherwise manner".

It further observed that it is the duty of the Advocate representing such party to consider whether the said document has come to his client by legal means or not.

Merely because his client is asking him to produce, the Advocate should not run the risk of producing such document before any Court of law where he cannot explain the source from which the client has fetched the document, the court underscored.

Case title: Farukh Shah v/s State of Maharashtra

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