Bombay High Court
Nawab S/O Lalmohammed Gawali vs The State Of Maharashtra And ... on 25 November, 2016
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1530 OF 2016
WITH
CRIMINAL WRIT PETITION NO. 1531 OF 2016
* * * * *
CRIMINAL WRIT PETITION NO. 1530 OF 2016
Rahul @ Bala s/o. Digamber Sonavane .. Petitioner
Age. 25 years, Occ. Labour,
R/o. Shanti-Nagar, Bhusawal,
Tq. Bhusawal, Dist. Jalgaon.
Versus
1. The State of Maharashtra .. Respondents
Through its Principal Secretary,
Ministry of Home Department,
Mantralaya, Mumbai.
2. The Collector/District Magistrate,
Office of District Magistrate,
Jalgaon.
3. The Sub-Divisional Magistrate,
Bhusawal Division, Bhusawal,
Tq. Bhusawal, Dist. Jalgaon.
4. The District Superintendent of Police,
Police Head Quarters,
Tal. & Dist. Jalgaon.
5. The Police Inspector,
Bhusawal City Police Station,
Tq. Bhusawal, Dist. Jalgaon.
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WITH
CRIMINAL WRIT PETITION NO. 1531 OF 2016
Nawab s/o. Lalmohammed Gawali, .. Petitioner
Age. 30 years, Occ. Labour,
R/o. Gawaliwada, Sutargalli, Bhusawal,
Tq. Bhusawal, Dist. Jalgaon.
Versus
1. The State of Maharashtra .. Respondents
Through its Principal Secretary,
Ministry of Home Department,
Mantralaya, Mumbai.
2. The Collector/District Magistrate,
Office of District Magistrate,
Jalgaon.
3. The Sub-Divisional Magistrate,
Bhusawal Division, Bhusawal,
Tq. Bhusawal, Dist. Jalgaon.
4. The District Superintendent of Police,
Police Head Quarters,
Tal. & Dist. Jalgaon.
5. The Police Inspector,
Bhusawal City Police Station,
Tq. Bhusawal, Dist. Jalgaon.
Mr.N.E. Deshmukh, Advocate for the petitioners.
Mr.A.R. Kale, A.P.P. for respondent/State.
CORAM : Z.A. HAQ,J.
DATED : 25.11.2016
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ORAL JUDGMENT :-
. Heard. These two petitions can be disposed by a
common judgment as the facts in both the cases are
similar and the point raised in both the petitions is
same.
02. Rule. Rule made returnable forthwith.
03.
The petitioner in Criminal Writ Petition No.1530
of 2016 is facing prosecution in C.R. No.123 of 2011 for
the offences punishable under sections 452, 323, 504, 506
read with section 34 of the Indian Penal Code and
prosecution in C.R. No. 180 of 2016 for the offences
punishable under sections 353 & 332 of the Indian Penal
Code.
. The petitioner in Criminal Writ Petition No.
1531 of 2016 is facing prosecution in C.R. No.76 of 2015
for the offences punishable under sections 324, 452, 427,
504 & 506 of the Indian Penal Code and prosecution in
C.R. No.41 of 2016 for the offences punishable under
sections 324, 452, 427, 504, 506 of the Indian Penal
Code.
. The learned A.P.P. states that as per his
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instructions the petitioner in Criminal Writ Petition
No.1531 of 2016 is facing prosecution for the offence
punishable under section 354 of the Indian Penal Code
also.
04. The Sub-Divisional Magistrate passed the orders
under section 144(2) of the Criminal Procedure Code
restraining the petitioners from residing at their
residence or entering the Municipal limits of Bhusawal
till 30.11.2016, except for casting vote on 27.11.2016
between 07.30 a.m. to 09.30 a.m. The consideration for
passing the orders was that the petitioners are facing
prosecutions.
05. The orders passed by the Sub-Divisional
Magistrate were challenged by the petitioners before the
Sessions Court in Revision under section 397 of the
Criminal Procedure Code. The learned Additional Sessions
Judge refused to entertain the Revision Applications on
the ground that the petitioners have alternate remedy
available under section 144(5) of the Criminal Procedure
Code. The petitioners, being aggrieved in the matter,
have filed these writ petitions.
06. The learned A.P.P. has opposed the petitions on
the ground that the petitioners have alternate
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efficacious remedy under section 144(5) of the Criminal
Procedure Code.
07. After hearing the learned Advocate for the
petitioners and the learned A.P.P., I find that the
orders passed by the Sub-Divisional Magistrate are
unsustainable as they are without jurisdiction. The
learned Sub-Divisional Magistrate has no jurisdiction to
pass order under section 144 of the Criminal Procedure
Code externing the petitioners. In any case the facts on
record show that there was no such urgency which
necessitated the dispensing of notice to the petitioners
before passing the orders, which have civil consequence
and affect the petitioners aversely. In these facts I am
not inclined to consider the submissions made on behalf
of the respondents that the petitions need not be
entertained as the petitioners have alternate efficacious
remedy available to seek redressal of their grievance.
08. In view of the above, the following order is
passed :-
. The orders passed by the Sub-Divisional
Magistrate on 5th November, 2016 in both the cases are
quashed.
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09. The Criminal Writ Petitions are allowed. Rule
made absolute in the above terms. In the circumstances,
the parties to bear their own costs.
[Z.A. HAQ,J.]
snk/2016/NOV16/crwp1530.16
