Bombay High Court

Santshri Baba Maha Hansaji ... vs The State Of Maharashtra And ... on 2 March, 2017

Bench: S.S. Shinde

                                                                   318.17WP
                                        1


                            
            IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                       BENCH AT AURANGABAD

                 CRIMINAL WRIT PETITION NO. 318 OF 2017

          Santshri Baba Maha Hansaji Maharaj 
          Age : 40 years, Occ : Social Work & 
          Spiritual promotion, 
          R/o Sant Kutiya, Manu Devi Road, 
          Satpuda Jangal Parisar, Aadgaon, 
          Tq. Yawal, Dist. Jalgaon. 
                                            ..PETITIONER 
               VERSUS

          1.       The State of Maharashtra 
                   Through its Chief Secretary, 
                   Home Department, 
                   Mantralaya, Mumbai-32. 

          2.       The Sub-Divisional Magistrate, 
                   Faijpur Division, Faijpur, 
                   Tq. Yawal, Dist. Jalgaon. 

          3.   Police Inspector, 
               Yawal Police Station, 
               Tq. Yawal, Dist. Jalgaon.
                                           ..RESPONDENTS 
                                  ...
              Advocate for petitioner : Mr.N.B. Narwade 
            APP for Respondent/State : Mr. S.B. Yawalkar 
                                  ...
                              CORAM : S.S. SHINDE & 
                                      K.K. SONAWANE, JJ.

RESERVED ON : 23rd February, 2017 PRONOUNCED ON : 2nd March, 2017

JUDGMENT : (PER S.S. SHINDE, J)

Rule. Rule made returnable forthwith

and heard finally with the consent of the

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learned counsel appearing for the parties.

2. This Criminal Writ Petition is filed

with the following prayer :-

B. That, by issuing appropriate writ or direction in the like nature, the order passed by Ld. Sub-Divisional Magistrate, Faijpur, Division, Faijpur, Tq. Yawal, Dist. Jalgaon in proceeding bearing outward No.DANDPR/144 (5)/ETPL/2017/ 2/148/91 dated 18.02.2017 may kindly be quashed and set aside.

3. It is the case of the petitioner

that, on 9th February, 2017, respondent no.2 -

Sub-Divisional Magistrate, Faijpur Division,

Faijpur had passed the order invoking powers

under Section 144(2) of the Code of Criminal

Procedure, whereby the present petitioner is

prevented from entering in the revenue

jurisdiction of Yawal Taluka, Dist. Jalgaon.

On 11th February, 2017, the petitioner filed

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his say/objection but same has not been

considered. It is the case of the petitioner

that, on 13th February, 2017, the petitioner

filed the proceedings under Section 144(5) of

Code of Criminal Procedure, but as the

respondents authorities were not taking any

decision in the said proceedings, and as the

period from 14th February, 2017 to 23rd

February, 2017 is lapsing, hence the

petitioner filed Criminal Writ Petition

No.281/2017 before this Court and this Court

disposed of the said Petition on 17th

February, 2017 with direction to respondent

no.2 to decide the said proceedings initiated

by the petitioner. On 18th February, 2017,

the proceeding filed by the petitioner under

Section 144(5) of Code of Criminal Procedure

came to be dismissed. Hence this Criminal

Writ Petition.

4. The learned counsel appearing for

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the petitioner submits that, the order passed

by respondent no.2 under Section 144(2) of

the Code of Criminal Procedure is without

taking into consideration the fact that, out

of four crimes registered against the

petitioner in two crimes being Crime

No.9/2008 and Crime No.40/2013, the

petitioner is already acquitted. The learned

counsel submits that, respondent no.2

without applying his mind has passed the

order dated 18th February, 2017 as while

passing the said order, respondent no.2 has

considered the crime registered against the

petitioner at Chopda Police Station. The

learned counsel submits that, the only one

crime i.e. Crime No.119/2016 is registered

against the petitioner in Yawal Police

Station and the same is pending and

therefore, on the basis of the same, the

petitioner cannot be prevented from entering

in the revenue jurisdiction of Yawal taluka.

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The learned counsel submits that, respondent

no.2 has passed the said impugned order

without taking into consideration the fact

that, there is no danger to the life, health,

safety or peace and tranquility of public due

to the activities of the petitioner. The

learned counsel submits that, due to passing

of order dated 18.02.2017, the fundamental

rights of the petitioner have been infringed

and his right of freedom of movement is also

affected. The learned counsel submits that,

the petitioner is the President of Non-

Government Organization namely, "Jungle

Bachav Sanstha" and also President of

Committee namely "संयुकत वन वयवसथापन सिमती" (J.F.M.). The learned counsel further

submitted that, the impugned order thereby

preventing the petitioner from entering in

the revenue jurisdiction of Yawal Taluka for

the period of 14.02.2017 to 23.02.2017, is

too harsh and excessive as the freedom of

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movement of the petitioner is restricted and

hence the impugned order is liable to be

quashed and set aside and the Petition

deserves to be allowed.

5. On the other hand, the learned

A.P.P. appearing for the State, relying upon

the reasons assigned in the impugned orders

and also the original record, submits that,

the order passed by the authority is in

accordance with the provisions of Section

144(2) of the Code of Criminal Procedure.

There are four offences registered against

the petitioner. The petitioner's presence

during the elections of Zilla Parishad will

cause disturbance for maintaining the public

order. He is history-sheeter. He creates

terror in the vicinity, and therefore, there

is fear in the mind of the people residing at

village Aadgaon and nearby villages.

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6. We have heard the learned counsel

appearing for the petitioner and the learned

A.P.P. appearing for the respondents at

length. With their able assistance, we have

perused the pleadings in the Petition,

grounds taken therein, annexures thereto,

reasons assigned by the respondent no.2, the

original record, the provisions of Section

144 of the Code of Criminal Procedure, and

the judgments cited across the bar by the

learned counsel appearing for the petitioner,

namely the judgment of Karnataka High Court

in case of Pramod Muthalik V/s District

Magistrate, Davanagere1 and the judgment of

the Supreme Court in the case of State of

Karnataka and another V/s Dr. Praveen Bhal

Thogadia2 relied upon by the learned A.P.P.

7. It appears from the reply filed by

the respondent authorities before the Sub-

1 2003(3) Crimes 510 2 AIR 2004 SC 2081

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Divisional Officer, Faizpur in proceeding

bearing outward No.DANDPRA/144 (2)/ETPL/2017/

2/148/28 that, village Aadgaon is sensitive

village. Earlier there were riots and

offences registered against the petitioner.

The petitioner has indulged in criminal

activities in past. There is a fear in the

mind of the people residing in village

Aadgaon and nearby villages. Nobody is ready

to depose against him, and therefore, the

petitioner was prevented from entering in

Yawal Tahsil from 14.02.2017 to 23.02.2017.

According to the respondents, the respondent

authorities invoked the provisions of sub-

section (2) of Section 144 of the Code of

Criminal Procedure and passed the exparte

order thereby preventing the petitioner for a

period of 10 days from entering in Yawal

Tahsil. Upon careful perusal of the original

record maintained by the respondents, there

are no reasons disclosed in the impugned

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order that, the situation was so emergent,

and therefore, preventing the petitioner from

entering in Yawal Tahsil was warranted by

invoking the sub-section (2) of Section 144

of the Code of Criminal Procedure. It appears

from careful perusal of the order passed by

the respondent no.2 that, the blanket order

preventing the petitioner from entering Yawal

taluka is passed, which appears to be harsh,

excessive and disproportionate to the need.

It is true that, the record shows that the

four offences were registered against the

petitioner and out of four offences, he is

already acquitted of two offences. One

offence, which is pending is of the year 2008

and other offence is registered in the month

of November, 2016. There are no reasons

assigned by the authorities in the order

dated 9th February, 2017 that, the situation

was so emergent and did not admit the

compliance of the principles of natural

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justice since before passing the order

preventing the petitioner from entering in

Yawal Tahsil. At this juncture, it would be

useful to make reference to the judgment of

the Karnataka High Court in the case of

Pramod Muthalik (supra). In that case, the

Karnataka High Court has considered the

judgment of the Bombay High Court in the case

of Mahonar Gajanan Joshi V/s S.B. Kulkarni

and others3 and the judgment of the Supreme

Court in the case of Rupinder Singh Sodhi and

another Vs. Union of India and others4 and

reached to the conclusion in para 12, which

reads as under :-

"12. Assuming for the moment hypothetically that the visit of petitioner is likely to create communal tension by his inflammatory public speeches. The blanket order debarring the petitioner from entering the district of Davanagere appears to be too harsh, excessive and

3 1989 Cri.L.J. 1364 4 (1983) 1 SCC 140

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disproportionate to the need. It is evident from the order that by inflammatory speeches of the petitioner, it is likely that communal tension would build up resulting in breach of peace and public tranquility. If the act of delivering public speeches is alone to be the cause for the apprehended threat to public peace only to the extent of directing the petitioner not to address public rallies could have been a suffice solution. On the contrary, debarring the petitioner from entering the district for a period of one month by a blanket order is too excessive. The Magistrate without resorting to the debarring of the petitioner from entering Davanagere, could not directed the petitioner and all the political orgnisations from holding any rallies or meetings for sometime in order to allow the event of murder to die down in the memories of the public."

8. In the facts of present case, we are

of the opinion that, the ratio laid down in

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the above two judgments is not followed by

the respondent authorities while passing the

impugned order of preventing the petitioner

from entering in Yawal Tahsil. In that view

of the matter, the inevitable conclusion is

that, the order passed by the Sub-Divisional

Magistrate, Faijpur, Division Faijpur cannot

sustain. Hence the impugned order dated 18th

February, 2017 passed by the Sub-Divisional