High Court
Legal Reasoning
972.Crl.WP.1481.23.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO.1481 OF 2023Janardhan s/o Kamlakar Nawale … PETITIONER VERSUS 1.The State of Maharashtrathrough its Chief Secretary,Home Department, Mantralaya,Mumbai – 32.2.The Sub Divisional Police Officer,Sangamner, Sub Division,Dist. Ahmednagar.3.The Sub Divisional Magistrate,Sangamner Division, Sangamner,Dist. Ahmednagar4.The Police Inspector,Akole Police Station, Akole, Tq. Akole, Dist. Ahmednagar …RESPONDENTS ...Advocate for Applicant : Mr. K.N. ShermaleAddl.P.P. for respondent/State : Mr. M.M. Nerlikar… CORAM : MANGESH S. PATIL & SHAILESH P. BRAHME, JJ.Reserved on : 18.01.2024Pronounced on : 16.02.2024ORDER (MANGESH S. PATIL, J.) :This is a writ petition under Article 226 of the Constitution ofIndia, wherein, the petitioner is challenging the order passed by therespondent No.3, who is the Sub-Divisional Magistrate (SDM), on aproposal submitted by the respondent No.2 – Sub-Divisional PoliceOfficer (SDPO), dated 12.09.2023, purportedly under Section 144 (3) of1/8 972.Crl.WP.1481.23.odtthe Code of Criminal Procedure, 1973 (Cr.P.C.), thereby, directing him notto enter into the limits of Akole Police Station and the revenue villagefrom 12:00 noon of 18.09.2023 to 29.09.2023, with a view tomaintaining law and order during that period since it was the duration ofthe Ganesh Festival and the Eid-e-Milad on 28.09.2023. In addition, thepetitioner is seeking a direction against the respondent No.1 – the Stateof Maharashtra to initiate an action against the SDPO.2.It is necessary to note at this stage that the petition was filedon 20.09.2023. The matter was circulated before the Court on21.09.2023. It was adjourned to 05.10.2023, however, granting ad-interim relief in terms of prayer clause “D” whereby, the petitioner hadsought stay to the operation of the order under challenge. Consequently,in effect, by passage of time, the period for which he was prevented fromentering into the territorial limits has been already over and the matterhas become infructuous, still, the petitioner was required to suffer thepart of the impugned order. Therefore, the matter does not remainacademic and we propose to deal with the legality of the order underchallenge. 3.The learned advocate for the petitioner would vehementlysubmit that the order is arbitrary and capricious albeit he was issued witha notice, to which he had replied and the order was passed thereafter. Hewould submit that mere registration of crimes over a period between2/8 972.Crl.WP.1481.23.odt2011 to 2020 was taken into consideration to entertain the apprehensionthat unless he was prevented from entering into the geographical limitsthere could be a possibility of issue about law and order being croppedup. He would submit that no offence was registered against him in therecent past and the stale cases were pitted against him. 4.The learned advocate would then submit that the impugnedorder has been passed vindictively. In fact, on petitioner’s complaint withthe Anti-corruption Bureau an action was initiated against one SantoshWagh who was attached to the Akole Police Station. He was caught redhanded and at his instance the action was proposed against him whichhas resulted in passing of the impugned order. He would submit thatthere was no material to justify the inference and the action was takenhurriedly, unmindful of various facts and circumstances and withoutthere being any recent material showing any tendency of the petitioner inaffecting law and order. 5.The learned advocate for the petitioner would then submitthat the opinion formed by the respondent No.3 is clearly based on merependency of the criminal cases without actually ascertaining in how manyof these cases the petitioner has been acquitted.6.Further the learned advocate would point out that the policemachinery has been acting vindictively against the petitioner and attemptwas made to extern him by passing an order under Section 56 of the3/8 972.Crl.WP.1481.23.odtMaharashtra Police Act, 1951. The respondent No.3 had passed the orderunder that provision on 01.09.2022. The petitioner had challenged itbefore the Divisional Commissioner. By the order dated 14.12.2022 hisappeal was allowed and the order of the respondent No.3 was set aside.Even that order was passed for externment relying upon the very samecrimes and having failed in that attempt the present action has beentaken out. The order be quashed and set aside.7.The learned APP opposes the petition by referring to theaffidavit-in-reply of the respondent No.4 who is P.I. of the Akole PoliceStation. He would submit that there is no arbitrariness in passing theimpugned order. Principles of natural justice have been followed. Thepetitioner was extended an opportunity of being heard by issuing anotice. He had replied to the notice. After applying mind to all the factsand circumstances and particularly the consistent criminal record of thepetitioner, the decision was taken in the wake of Ganesh Festival and Eid-e-Milad. The respondent No.3 - SDM has reached subjective satisfactionbased on objective material available to him. This Court cannotsubstitute its views in place of his subjective satisfaction. He would,lastly, submit that the period for which the petitioner was externed isalready over. The petitioner could avail interim relief, thereby, the periodof externment was barely less then 3 days out of the total period of 10days and the Court may not entertain the petition now.4/8 972.Crl.WP.1481.23.odt8.Having heard both the sides extensively and having perusedthe record, as has been observed earlier, though the petitioner wasexterned by the impugned order for a period of 10 days, he havingobtained the interim relief on 21.09.2023 he had suffered the orderbarely for 3 days or may be less than that. Needless to state that bypassage of time even that order has lived its life. However, since in ourconsidered view the impugned order in substance affects the fundamentalrights guaranteed under Article 19 (1)(d) of the Constitution of India,even if by virtue of Article 19(5), there could be a law imposingreasonable restriction, the matter cannot be brushed aside as is beingrequested by the learned APP, on the spacious plea that the period forwhich the impugned order directed the petitioner not to enter into thegeographical limits has ended. We are not inclined to accept thesubmission of the learned APP to close the matter without examininglegality of the order under challenge. 9.A bare perusal of the order reveals that the respondent No.3has reached the subjective satisfaction based on the number of crimesregistered against the petitioner for various offences. First paragraph ofthe order enlists the crimes and sections of the Indian Penal Code and theScheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989collectively against all the crimes. In second paragraph, it has beenmentioned as to how the proposal has reached him. In third paragraph it5/8 972.Crl.WP.1481.23.odthas been mentioned about the petitioner having been served with anotice and he having submitted the reply and brushs aside the reply inone line by observing that the reply was brief and not reliable as a groundfor refuting it. The effective order has been passed in the last paragraph.We have no manner of doubt that the impugned order has been passedwithout application of mind. Registration of number of crimes per seseems to be the only ground considered by the respondent No.3 whilepassing the impugned order. 10.If the respondent No.3 was to pass the impugned orderwhich was to have drastic effect on the fundamental right of thepetitioner guaranteed under Article 19 (1)(d) of the Constitution, heshould have mentioned the circumstances indicating the substantivereasons for him to reach the subjective satisfaction. Since the impugnedorder is bereft of the objective material except registration of crimes, itwould certainly be an arbitrary exercise of the powers.11.One can simply refer to the principles which require reasonsto be recorded in such matters as laid down in the matter of KrantiAssociates (P) Ltd. Vs. Masood Ahmed Khan ; (2010) 9 SCC 496. We areaware that sufficiency or otherwise of the reason may not be a matterwhich can be gone into in exercise of the powers under Article 226 of theConstitution of India. However, when the impugned order merely refersto the pendency of the criminal cases and merely refers to the festivities6/8 972.Crl.WP.1481.23.odtto happen between 19.02.2021 to 28.09.2023, according to us the orderis sans any reason to justify the order. We have, therefore, no hesitationin concluding that the respondent No.3 has exercised the powerarbitrarily and capriciously.12.There is total non-application of mind in passing the order,inasmuch as it does not deal with the stand being taken by the petitionerin his reply to the show cause notice, wherein, he had expressly given thedetails as to how in each of the crimes referred to in the order either hewas not concerned or has been acquitted and two of which were merelynon-cognizable matters. He had also taken a specific stand that the orderpassed against him regarding externment was set aside by the DivisionalCommissioner and since thereafter he was not involved in any crime.More importantly the show cause notice was containing the omnibusstatement that by taking advantage of the police machinery likely to beengaged in maintaining law and order there was likelihood of hisindulging in bootlegging/commission of other crimes. A specific standwas taken in the reply that he was never involved in bootlegging. Theimpugned order does not deal with it at all.13.Interestingly, the grounds which were notified to thepetitioner in the show cause notice that there was likelihood of hisindulging in bootlegging or commission of other crimes, is alsoconspicuously absent in the impugned order. This further buttresses our7/8
Decision
972.Crl.WP.1481.23.odtconclusion that the impugned order has been passed without applicationof mind.14.To sum up, the impugned order is grossly illegal and is liableto be quashed and set aside.15.As regards the prayer for direction to initiate action againstthe Sub Divisional Police Officer, we are not inclined to do so for morethan one reason. He had simply forwarded a proposal, which could orcould not have been acted upon by the Sub Divisional Magistrate, whopassed the impugned order. Against there is dearth of material to drawany inference that the proposal was activated by mala fides or with someulterior motive.16.The Writ Petition is allowed partly. The impugned order isquashed and set aside. The writ petition to the extent of seekingdirection to initiate some action against respondent No.2 – Sub DivisionalPolice Officer, is dismissed. [ SHAILESH P. BRAHME ] [ MANGESH S. PATIL ] JUDGE JUDGEhabeeb8/8