HIGH COURT FOR THE STATE OF TELANGANA

AT HYDERABAD

*****

Criminal Revision Case No.409 OF 2023

Between:

Syed Shah Hamed Saberi … Petitioner

And

The State of Telangana

Through SHO, PS Banjara Hills,

rep. by Public Prosecutor and another. ..Respondents/Complainant

DATE OF JUDGMENT PRONOUNCED :05.01.2024

Submitted for approval. THE HON’BLE SRI JUSTICE K.SURENDER

1 Whether Reporters of Local

newspapers may be allowed to see the Yes/No

Judgments?

2 Whether the copies of judgment may

be marked to Law Reporters/Journals Yes/No

3 Whether Their Ladyship/Lordship

Wish to see their fair copy of the Yes/No

Judgment?

__________________

K.SURENDER, J

2

* THE HON’BLE SRI JUSTICE K. SURENDER

+ CRL.R.C. No.409 of 2023

% Dated 05.01.2024

# Syed Shah Hamed Saberi … Petitioners

And

$ The State of Telangana

Through SHO, PS Banjara Hills,

rep. by Public Prosecutor and another Respondents/Complainants

! Counsel for the Petitioners: Sri K.Venumadhav

^ Counsel for the Respondents: Addl. Public Prosecutor for R1

Sri G.M.Mohiuddin for R2.

>HEAD NOTE:

? Cases referred

3

THE HON’BLE SRI JUSTICE K.SU RENDER

CRIMINAL REVISION CASE No. 409 of 2023

ORDER:

1. This Criminal Revision Case is filed against order dated

02.12.2022 in Crl.M.P.No.1167 of 2022 in Crime No.468 of

2022 (now numbered as C.C.No.5900 of 2022) passed by the

III Additional Chief Metropolitan Magistrate, Hyderabad for the

offence under Sections 325 and 506 of IPC.

2. The 2

nd respondent filed a complaint against this

petitioner and another, alleging offences under Sections 325

and 506 of IPC. Complaint was filed on 13.06.2022 alleging

that the 2

nd respondent and this petitioner have purchased flat

bearing No.202 in Classic Apartments situated at Road No.10,

Banjara Hills, by way of joint investment. This petitioner was

insisting that the amounts invested for the purchase of flat

should be paid back to him. On 13.06.2022, it is alleged that

this petitioner and his brother Ali Saberi asked the 2

nd

respondent to come to Silver Salt Restaurant. Ali Saberi

picked up quarrel and attacked with sharp weapon with an

4

intention to kill him. Due to the assault by Ali Saberi (A2) he

was shown as A2 in the complaint. According to the charge

sheet filed, the attack was planned by this petitioner and

executed by Ali Saberi. The said acts of Ali Saberi and this

petitioner amount to offences punishable under Sections 325

and 506 of IPC, for which complaint was filed.

3. Though the complaint was filed against this petitioner

and Ali Saberi, the police during the course of investigation

found that it was Ali Saberi who called the 2

nd respondent to

Silver Salt Restaurant for settling the property disputes. After

receiving the call from Ali Saberi, the 2

nd respondent reached

the spot. Then, Ali Saberi picked up quarrel and attacked with

hands. Accordingly charge sheet was filed only against Ali

Saberi.

4. Since the police did not array this petitioner as accused,

protest petition was filed by the 2

nd respondent. Having

recorded the sworn statement of the 2

nd respondent, learned

Magistrate took cognizance of the offence under Section 109

r/w 325 and 506 of IPC against the petitioner by rejecting the

5

final report filed by the Investigating Officer to the extent of

not finding this petitioner liable for the attack on the 2

nd

respondent.

5. Learned counsel appearing for the petitioner would

submit that the learned Magistrate has not assigned any valid

reasons for taking cognizance against this petitioner and

issued summons.

6. It was further argued that this petitioner was not present

at the time when the alleged incident had taken place. Except

stating that this petitioner was also involved and at the

instance of this petitioner, Ali Saberi had attacked, cannot

form basis to direct the petitioner to undergo criminal trial.

7. On the other hand, learned counsel appearing for the 2

nd

respondent would submit that though the petitioner was not

present at the scene, it was his plan to attack the 2

nd

respondent and accordingly, it was executed by Ali Saberi. If

not being present at the scene, would form basis for not

proceeding in a criminal case, any person, who intends to

6

commit an offence would stay away from the scene and hire

persons to commit the offence. Merely not being present at the

scene, it cannot be said that the petitioner was not

responsible. Learned counsel further stated that at the time of

concluding his argument that he intends to file written

arguments, however, no written arguments were filed.

8. The police having investigated the case concluded that

this petitioner was not present when the incident had taken

place for which reason, proceedings were dropped against this

petitioner and charge sheet was filed against Ali Saberi after

examining CCTV footage and witnesses.

9. The only basis for including the petitioner as accused is

the statement of the 2

nd respondent that he received a call

from the phone of Ali Saberi. However, this petitioner had also

talked to him and asked him to come to Silver Salt

Restaurant. Ali Saberi is the brother of this petitioner.

Admittedly, the alleged call was received from Ali Saberi’s

phone and this petitioner was not present at the hotel where

the complainant was attacked. It appears to be improbable

7

that the complainant was called to a public place like

restaurant to be attacked and cause injuries and not a

secluded place.

10. In the complaint and the statement made, it is mentioned

that Ali Saberi picked up quarrel and attacked with a sharp

weapon. Apparently, the alleged incident of attack was after a

quarrel in between Ali Saberi and the complainant. The

consequence of the quarrel was attack by Ali Saberi. In the

said circumstances, only for the reason of the complainant

stating that the petitioner had talked to him after Ali Saberi

had called him, cannot form basis to prosecute the petitioner

for the offence under Section 325 r/w 109 of IPC.

11. Abetment is an act of instigating any person to do a thing

or engaging with one or more persons in conspiracy and in

pursuance of such conspiracy doing such thing. Further,

intentional aiding by any act or illegal omission in doing such

thing amounts to abetment as defined under Section 107 of

IPC.

8

12. Section 109 IPC enables punishment for abetment and

applies though the abettor is not present at the scene.

However, as narrated by the complainant, Ali Saberi picked up

quarrel in the hotel and consequently there was an attack. The

attack was a result of quarrel at the hotel in between Ali

Saberi and the Complainant, as such, it cannot be said that

this petitioner had instigated or engaged or intentionally aided

the said Ali Saberi to attack the complainant.

13. It is not the case that the petitioner had criminally

intimidated the complainant at the time of alleged

conversation on phone, as such, the offence under Section 506

of IPC is not attracted.

14. For the above discussed reasons, the petitioner succeeds

and proceedings against him are liable to be quashed.

15. In the result, the proceedings against the petitioner/A2

in Crime No.468 of 2022 and consequent C .C No.5900 of 2022

on the file of III Additional Chief Metropolitan Magistrate,

Hyderabad, are hereby quashed. Consequently, the impugned

9

order dated 02.12.2022 in Crl.M.P.No.1167 of 2022 in

Cr.No.468 of 2022 is set aside.

16. Criminal Revision Petition is allowed.

__________________

K.SURENDER, J

Date : 05.01.2024

Note: LR copy to be marked.

B/o.kvs

10

THE HON’BLE SRI JUSTICE K.SURENDER

CRIMINAL REVISION CASE No. 409 of 2023

Dt.05.01.2024

kvs