M/S Rai Udyog Ltd, Thr.Its ... vs State Of Mah. Thr. Police Station ...
2022 Latest Caselaw 7235 Bom

                              -1-        13.CRI. WP.622.2021. Judgment.odt



   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
             NAGPUR BENCH : NAGPUR.

       CRIMINAL WRIT PETITION NO.622 OF 2021

   PETITIONER        :      M/s. Rai Udyog Ltd., a Company
                            registered under the provisions of the
                            Companies Act, 1956, having its
                            registered Office at "Rajat Sankul",
                            opposite ST Bus Stand, Ganeshpeth,
                            Nagpur-18, through its Managing
                            Director, Shri Kishor S/o Gopichand Rai.

                                    //VERSUS//

   RESPONDENTS : 1. State of Maharashtra, through Police
                    Station In-charge, Sadar Police Station,
                    Tahsil & District: Nagpur.
                         2. The Police Commissioner, Nagpur City,
                            Mangalwari, Nagpur.
                         3. The Deputy Commissioner of Police,
                            Special Branch, Civil Lines, Nagpur.

  **************************************************************
          Mr. S.P. Dharmadhikari, Senior Advocate a/b. Mr. C.S.
Dharmadhikari, Advocate & Mr. R.A. Bhandakkar, Advocate for the
                            Petitioner.
      Mr. A.S. Fulzele, Addl. P.P. for Respondent Nos.1 to 3.
 Mr. M.M. Akhtar, Advocate h/f. Dr. A.H. Jamal, Advocate for the
                           Intervenors.
   **************************************************************
        CORAM :          MANISH PITALE AND
                         VALMIKI SA MENEZES, JJ.

DATE : 27th JULY, 2022.

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ORAL JUDGMENT (Per: Manish Pitale, J.)

Rule. Rule made returnable forthwith. Heard finally

with the consent of the learned counsel appearing for the rival

parties.

02] The petitioner - Company has approached this Court

challenging notice dated 28.06.2021, issued by the respondent

No.1 i.e. the State through Police Officer In-charge, Sadar Police

Station, Tahsil and District - Nagpur, whereby the respondent

No.1, exercising power under Section 149 of the Code of Criminal

Procedure, 1973 (for short "Cr.P.C."), has restrained the petitioner

- Company in carrying out construction on a piece of land, which

according to the petitioner - Company is owned by it, until an

appropriate order is obtained from the competent Court in that

regard. It is recorded in the impugned notice that the aforesaid

direction was given in the backdrop of a law and order situation

created due to the alleged existence of a Dargah on a part of the

said land.

03] When this petition was taken up for consideration,

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learned counsel Mr. Akhtar holding for Mr. A.H. Jamal, learned

counsel, submitted that an application for intervention bearing

Criminal Application (APPW) No.24/2022, was filed in this

petition on behalf of seven applicants, who claim that they have a

right to be heard in the present petition.

04] We have perused the intervention application,

wherein the applicants claim that the aforesaid Dargah is existing

for the past about 200 years and that if the petitioner - Company

is permitted to continue development/construction activity on the

land in question and the Dargah is demolished, it would adversely

affect devotees, who visit the Dargah for religious activities.

Reference is made to certain Government Resolutions, while

claiming that the applicants need to be heard in the present

petition.

05] In the context of the aforesaid intervention

application, Mr. S.P. Dharmadhikari, learned Senior Counsel

appearing for the petitioner, invited attention of this Court to an

order dated 18.04.2022, passed in Writ Petition No.2027/2022

(Rajesh Chotelal Tambe & Others Vs. State of Maharashtra &

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Others), whereby a Division Bench of this Court considered the

aforesaid writ petition, filed by the applicants herein. It was

submitted that the order passed in the said petition is significant

and that the same ought to be taken into consideration, while

deciding as to whether the present application for intervention

deserves to be considered at all.

06] A perusal of the order dated 18.04.2022, passed in

Writ Petition No.2027/2022, would show that the applicants

herein had approached this Court by filing the aforesaid writ

petition on the Civil Side, claiming two reliefs, firstly, challenging

Government Resolution dated 02.03.2019 and secondly, seeking

a writ of mandamus for permission to the petitioners therein i.e.

the applicants herein and other devotees for easementary rights to

perform religious activities in respect of said Dargah. The Division

Bench of this Court found that during the course of arguments,

the petitioners accepted that no legal right of the petitioners

therein was affected and that they were not agitating the issue in

larger public interest and that as regards the grievance sought to

be projected in the writ petition, the petitioners therein proposed

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to file a civil suit for enforcement of their easementary rights. The

writ petition stood disposed of by recording the afoesaid

submissions advanced on behalf of the petitioners therein i.e. the

applicants herein.

07] It is an admitted position that in pursuance thereof,

till date, the proposed civil suit has not been filed for enforcement

of the alleged easementary rights. Instead, the petitioners therein

have filed the present intervention application seeking to re-

agitate the same issues that were highlighted in the aforesaid writ

petition. Having made a statement before the Division Bench of

this Court in the aforesaid writ petition that the applicants seeking

intervention herein will be filing a civil suit for enforcement of

their alleged easementary rights, we are of the opinion that the

intervention application does not deserve consideration. Even

otherwise, the notice impugned herein is a matter between the

respondent No.1 and the petitioner, with which the applicants

seeking intervention have not been able to show any concern.

Therefore, the intervention application i.e. Criminal Application

(APPW) No.24/2022 is dismissed.

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08] Insofar as the challenge in the present writ petition is

concerned, we have perused the impugned notice dated

28.06.2021. The notice starts by recording that the petitioner has

started construction activity on the land in question and that a

Dargah exists on a part of the land. It is then recorded that some

people had gathered at the spot, leading to a law and order

situation. On this basis, the respondent No.1 issued a direction to

the petitioner to obtain appropriate order from the competent

Court before undertaking any further activity on the said land.

09] To understand whether such a notice could be issued

under Section 149 of the Cr.P.C., it would be appropriate to refer

to the said provision, which reads as follows:

"149. Police to prevent cognizable offences. - Every police officer may interpose for the purpose of preventing, and shall, to the best of his ability, prevent, the commission of any cognizable offence."

10] A perusal of the above quoted provision, would show

that a Police Officer is expected to interpose only for the purpose

of preventing commission of a cognizable offence and that he can

take appropriate steps in that regard. The question is, whether the

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Police Officer, while exercising power under Section 149 of the

Cr.P.C., can issue a restrainment order or an order akin to an

injunction against a party. Reliance in this regard is placed on

behalf of the petitioner on judgment and order dated 27.03.2015,

passed by a Division Bench of this Court in the case of Shashikant

Bhurya Kokani Vs. The State of Maharashtra & Ors. reported in

2015(2) BomCR (Cri) 701. While considering the scope of the

aforementioned provision, in the said judgment, it was held as

follows:

"11. Section 149 of Criminal Procedure Code empowers every police officer to interpose for the purpose of preventing and, to the best of his ability, prevent the commission of any cognizable offence. Otherwise also, according to us, section 149 Cr.P.Code does not vest police officer in the exercise of jurisdiction under Section 149 Cr.P.C. to issue blanket order of injunction prohibiting any party from entering into the agricultural land. In our considered opinion, Respondent No.3 would not have issued impugned notice injecting the petitioner, more so when the appeals are pending adjudication. We are of the opinion that impugned notice (Annexure-F) issued by Respondent No.3 is unsustainable in law."

11] We are of the opinion that even if there was

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apprehension of a law and order situation being created at the spot

in question, while exercising power under Section 149 of the

Cr.C.P., the Police Officer (respondent No.1 herein) did not have

the power or authority to issue a virtual injunction order against

the petitioner - Company, which was undertaking construction

on a piece of land. If any party sought to raise a dispute as regards

the authority of the petitioner - Company to proceed with

construction on the said piece of land, such a party would

obviously have to knock the doors of the competent Civil Court

to obtain urgent order of injunction. In fact, as noted above, the

individuals who sought to intervene in the present petition, had

filed Writ Petition No.2027/2022, before this Court and they had

themselves proposed to file a civil suit for enforcement of the

alleged easementary rights, in the backdrop of which, the writ

petition stood disposed of.

12] It is significant that in Section 149 of the Cr.P.C.,

quoted above, the word "interpose" is used, in the context of a

Police Officer preventing commission of any cognizable offence.

In Cambridge Dictionary, interpose is defined by stating "to put

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something between two things". In Collins Dictionary, interpose

means "to intervene or step in". As per Marriam-Webster

Dictionary, interpose means "to be or come between" and in

Oxford Learner's Dictionary, interpose means "to place somebody

or something between two people or things".

13] Applying the aforesaid meanings given to the word

"interpose", in Section 149 of the Cr.P.C., a Police Officer is

required to come between people or things to prevent commission

of any cognizable offence. In the present case, even if the Police

Officer apprehended commission of a cognizable offence, he was

required to come in between persons and while doing so, ensuring

that lawful activity was assisted and unlawful activities were

prevented. The petitioner - Company carrying out development

activity/construction lawfully could not have been restrained

merely because some people gathered with the threat of

committing cognizable offence. On the contrary, the Police

Officer was expected to take appropriate steps by interposing and

ensuring that lawlessness and unlawful activity was prevented.

Those claiming any right to restrain the petitioner - Company

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from carrying out its development/construction activity ought to

approach the competent Civil Court for obtaining appropriate

orders of restraint, in accordance with law. Instead, the respondent

No.1 - Police Officer in the present case asked the petitioner -

Company to do so.

14] If the manner in which the respondent No.1 has

sought to exercise power under Section 149 of the Cr.P.C. is

upheld, it would lead to a situation, where development or other

such activity could easily be stalled by individuals creating a law

and order situation, whereupon a person or an entity seeking to

undertake lawful activity, would be asked to approach the Civil

Court and in the interregnum, the Police Officer would exercise

power under Section 149 of the Cr.P.C. to virtually issue orders of

injunction, which can never be contemplated under the aforesaid

provision.

15] In view of the above, we are of the view that the

impugned notice dated 28.06.2021, issued by the respondent

No.1, is wholly without jurisdiction and on that ground itself, it

deserves to be quashed and set aside.

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16] In view of the above, the writ petition is allowed in

terms of prayer Clause (A), which reads as follows:

"A. Quash and set aside the impugned notice dated 28.06.2021, issued by the Senior Police Station, Sadar Police Station, Nagpur, respondent no.1 herein, purportedly under Section 149 of Code of Criminal Procedure Code, 1973, it being ex-facie illegal and arbitrary; (ANNEXURE-I)."

17] Needless to say, any person aggrieved with the

aforesaid situation would be at liberty to approach the competent

Civil Court for appropriate relief.

                           18]          Rule is made absolute in above terms.




                            (VALMIKI SA MENEZES)                   (MANISH PITALE, J.)



                  Vijay




Digitally Signed By:VIJAY KUMAR
Personal Assistant
to Hon'ble JUDGE
Signing Date:29.07.2022 14:22