Bombay High Court
Bhumiraj Ramswami Tewar vs Sr. Inspector Of Police And State ... on 27 March, 2003
Author: J Chitre
Bench: J Chitre
JUDGMENT
J.G. Chitre, J.
1. The petitioner is assailing the correctness, propriety and legality of the order which has been passed by Special Executive Magistrate, Matunga Division, Mumbai dated 2.5.1997 by which he dismissed the initial objection raised by the petitioner in respect of Chapter Case No. 11 of 1997 - under Section 110 (e), (g) of the Criminal Procedure Code, 1973 (hereinafter referred to as Code for convenience).
2. Shri Chavan placed reliance on the judgment of Single Bench of this Court in the matter of Lalookhan Haideralikhan v. M.M. Kamble, Special Executive Magistrate, Byculla Division, Bombay and Ors., reported in 1996 CRI. L.J. 801. By placing reliance on that judgment he submitted that for proceeding against a person in view of provisions of Section 110 of the Code, he should have been convicted for any offence in the Court. Shri Chavan submitted that in the present case only complaints have been mentioned which have been filed against the applicant in police station and there is nothing on record to show that the present petitioner has been convicted in any of those offences complained of. He submitted that in the matter of one complaint the petitioner was in jail at the relevant time. Shri Chawan submitted that some other complaints are relating to the activities of the alleged friends of the petitioner and, therefore, for their acts, the petitioner cannot be held responsible. Shri Chawan submitted that the impugned order is illegal and, therefore, it be set aside.
3. Shri Saste appearing for the State of Maharashtra submitted that there is ample material on record to allow the learned Magistrate to proceed against the petitioner and the order which has been passed by him is correct, proper and legal.
4. Section 110 of the Code has to be read as a whole. It empowers the concerned Magistrate to proceed against the person who comes under the purview of any sub clause of Section 110 of the Code. Sub-clause (a) deals with person or person who is by habit a robber, house-breaker, thief, or forger, Sub-clause (b) also deals with a person who is by habit a receiver of stolen property knowing the same to have been stolen. Like that Clauses (c), (d), (e) and (f) also revolve around the word "habitual". Therefore in those cases, the question of interpreting the word "habit" would come in picture. Habit means not one or two instances alleged to have been committed by such person or in which such person has been involved. The word "habit" indicates repeat occurrence of such instances. Therefore, the judgment on which Shri Chavan is placing reliance would be applicable to those cases. In such cases, the Court may look for a conviction for coming to the conclusion whether such person is in habit of committing the acts which are indicated by Sub-clauses (a), (b), (c), (d), (e) and (f). The Court may also look for conviction in context with the acts allegedly revolving around Sub-clause (a). But if it is a matter relating to the acts which have been indicated by Clause (g), then the matter will have to be looked into with different angle.
5. Clause (g) indicates that such person should be "so desperate and dangerous as to render his being at large without security hazardous to the community". Therefore, while dealing with such cases, Magistrate would be obliged to consider the instances even alleged to have been committed by him. He may look for the information about the activities of such persons for coming to a reasonable conclusion whether his being at large, is hazardous to the safety of the community. He has to come to a reasonable conclusion whether his being at large is safe to the public tranquillity and welfare of the society concerned. The Magistrate would be entitled to judge subjectively whether he is a bravado, whether he is so dangerous so as to make his being at large dangerous and hazardous to the welfare of the society concerned. The higher Court would be examining whether there has been sufficient material allowing the concerned Magistrate to come to such a reasonable conclusion.
6. In the present case, the allegations made against the present petitioner show that thee are complaints against him that he is using lethal weapons like swords, sharp weapons and even revolvers also for the purpose of enforcing his command over others. Not only that, but he is assisted by his associates also. The allegations show that the petitioner and his associates have alleged to have robbed the persons on the point of weapons. The impact created by such allegations has to be considered as a whole and it has to be seen reasonably whether it allows the Magistrate to have a reasonable belief as indicated by Sub-clause (g) of Section 110 of the Code. If the material on record is reasonably examined, the action taken by the learned Magistrate appears to be correct and proper. This Court does not find that his procedure of proceeding further with such Chapter case needs any interference. Thus, petition stands dismissed.
