1. Heard rival submissions on earlier dates. Perused the documents annexed to the Writ Petition. Also perused the contents of the affidavit filed by Police Inspector & Special Executive Magistrate, Nashik (Rural) dated 6th January, 2011. Earlier, after issue of Rule on 18th January, 2011 by this Bench, the further proceedings pending before the Special Executive Magistrate, Nashik (Rural), were stayed and Writ Petition was posted for final hearing.
2. The Petitioners are challenging the notices issued to them under Sections 110(e)(g) & 111 of Criminal Procedure Code. Both the notices were issued on 6th September, 2010. Copies of said notices, which are in vernacular Marathi, are attached to the present Writ Petition at Page Nos.10 & 12.
3. Rather under peculiar circumstances recourse to the writ jurisdiction was taken shelter of by the Petitioners for challenging the show-cause notices issued under the chapter proceedings, by contending that the Petitioners are social workers and carrying out lawful agitations to sub-serve the public cause in the area of their residence at Malegaon, District - Nashik, being the members of some political party; and out of political vengeance and in order to harass the Petitioners recourse to the action of chapter proceedings was taken by the police machinery and for this purpose the shelter of stale proceedings and even the proceedings in which the petitioners were acquitted, was taken.
4. The grounds for issuance of notices under Section 110(e)(g) read with Section 111 of Criminal Procedure Code can be narrated as under :- Somewhere on 6th September, 2010 an application from Killa Police Station, Malegaon, District - Nashik was received by the Special Executive Magistrate, Nashik (Rural), stationed at Nashik, for initiating chapter proceedings against the present Petitioners. Involvement of the Petitioners in various proceedings / offences was specifically mentioned in the respective show-cause notices. Details of such offences are as under :-
OFFENCES REGISTERED AGAINST - BHARAT VITTHAL PATIL (PETITIONER NO.2) Sr. C.R. NO. ACT UNDER SECTION REMARKS No.
1. 26/2006 Indian Penal Code, 143, 147, 511 1860 The Maharashtra 3 Prevention of Defacement of Property Act, 199 Mumbai Police Act 37(1)(3)/135
2. 3016/2007 Prevention to Atrocities 3(2)(10) Acquitted Spl. to SC & ST Act, (Atrocity) 1989/1995 Case Indian Penal Code, 504, 506 No.3/08 1860 dt.26/8/08
3. 18/2008 Indian Penal Code, 143, 147, 148, Acquitted RCC/404/08 1860 149, 452, 353, Dt.30/10/09 332, 427, 504, 506 Mumbai Police Act. 37(1)(3)/135
4. 19/2008 Indian Penal Code 1860 143, 147, 341, Acquitted RCC/427/08 504, 506 Dt.17/7/09 Mumbai Police Act 37(1)(3)/135
5. 12/2010 Indian Penal Code 153(1)(B)
OFFENCES REGISTERED AGAINST - DINESH VITTHAL PATIL (PETITIONER NO.1) Sr. C.R. NO. ACT UNDER SECTION REMARKS No.
1. 54/1996 Indian Penal Code, 325, 324, 323, Acquitted RCC/251/96 1860 341, 34 Dt.21/7/09
2. 3004/2005 Mumbai Police Act 37(1)(3)/135
3. 26/2006 Indian Penal Code, 143, 147, 511 1860 The Maharashtra 3 Prevention of Defacement of Property Act, 1995 Mumbai Police Act 37(1)(3)/135
4. 18/2008 Indian Penal Code 143, 147, 148, Acquitted RCC/404/08 1860 149, 452, 353, Dt.30/10/09 332, 427, 504, 506 Mumbai Police Act 37(1)(3)/135
5. 19/2008 Indian Penal Code, 143, 147, 341, Acquitted RCC/427/08 1860 504, 506 Dt.17/7/09 Mumbai Police Act 37(1)(3)/135
5. So far as the offences against Petitioner No.1 Dinesh Vitthal Patil are concerned, the offence at Sr.No.1 mentioned above, is old matter of the year 1996 and in fact it ended in acquittal. So also, the matters at Sr.Nos.4 & 5 are also ended in acquittal. The matters at Sr.Nos.2 & 3 are of the year 2005 & 2006 and the offences at Sr.No.2 are only under the Mumbai Police Act, and the offences at Sr.No.3 are of unlawful assembly, attempting to commit the offences, under the Mumbai Police Act, and under Section 3 of the Maharashtra Prevention of Defacement of the Property Act.
6. So far as the offences against Petitioner No.2 Bharat Vitthal Patil are concerned, offences at Sr.Nos.2, 3 & 4 are already ended in acquittal. So far as offence at Sr.No.1 is concerned, it is for unlawful assembly, offences under Mumbai Police Act, and offence under Section 3 of the Maharashtra Prevention of Defacement of Property Act, 1995. So far as offence at Sr.No.5 is concerned, it mentions the role of the said Petitioner No.2 as to lighting fire crackers at the time of Shiv Jayanti procession in the locality thereby allegedly causing the breach of peace and distress between two communities.
7. So far as both the Petitioners are concerned, the offence mentioned against Bharat at Sr.No.1 i.e. CR No.26/2006 is a common case in which both the Petitioners are shown as involved. At the cost of repetition, it must be mentioned that said offences are for unlawful assembly and offence punishable under Section 37(1) (3) and Section 135 of Mumbai Police Act and the allegations in that matter against both the Petitioners are that on 3rd May, 2006 at 11:30 a.m. in front of Hanuman Temple, Malegaon, the Petitioners along with mob gathered together and started demonstration without taking prior permission from the concerned authorities and collected garbage on the hand-carts and proceeded towards the Municipal Corporation Office by giving slogans alleging incompetency of the Municipal Corporation concerning sanitation in the area.
8. Bearing in mind the above factual position and admitted position as to acquittal of the Petitioners in the matters, as detailed above and as accepted by the respondents vide the affidavit dated 6th January, 2011, it is to be ascertained whether under the Writ Jurisdiction, the relief as claimed in the present Petition can be granted.
9. The first question is whether this Petition under Article 226 to challenge the show-cause notice issued by the Authority under Section 111 of the Code is maintainable? It is well established position that declining to interfere in exercise of writ jurisdiction under Article 226 against a show-cause notice issued by the Authority is matter of prudence. The Court has jurisdiction to consider the questions relating to validity of the show-cause notice issued by the Authority, which, however, is exercised with circumspection in appropriate cases such as it is apparent from the face of the record that the proposed action is palpably untenable or colourable exercise of power. The petitioners have asserted that the proposed action initiated against the petitioners is malafide exercise of power. However, the pleadings do not contain material facts to substantiate the argument that the proposed action is the outcome of the malafide exercise of power by the concerned Officer, in fact. No allegation has been made against any particular officer nor the concerned officer has been named as party-respondent to take forward such a plea. Indeed, it is open to the petitioners to make good the argument that the proposed action is malafide in law.
10. In the Petition, it is asserted that the proposed action has been resorted to by the Authority having his Office at Nashik. Whereas, the petitioners are residents of Malegaon which is almost 105 kilo meters away, that too, in respect of incidents taken place at Malegaon. This, by itself, in our opinion, cannot be the basis to interfere with the proposed action and more so because of the explanation offered by the respondents on affidavit that the Authority empowered to initiate action under the said provisions is having his Office at Nashik. The said power has been invested in the Special Executive Magistrate posted at Nashik in terms of Government Resolution. In that sense, it is not possible to countenance the grievance of the petitioners that the proposed action has been resorted to by the Authority at Nashik only with a view to harass the petitioners. Thus, the argument regarding inconvenience being caused to the petitioners because of the distance, is rejected.
11. Reverting to the challenge to the show-cause notice on merits, at the cost of repetition, it is noted that the proposed action against the petitioners is on the basis that the petitioners are habitual offenders of specified offences referred to in Clauses (d) and (e) of Section 110 and are so desperate and dangerous as to render their being at large without security is hazardous to the community. Thus, the Authority has initiated action against the petitioners on the basis of information revealing that the petitioners are desperate and dangerous persons and are habitual offenders in respect of offences referred to in Clauses (d) and (e) of Section 110. The offences for which the petitioners were booked by the local police from time to time have been adverted to in the show-cause notice served on the respective petitioners. We have already culled out the details thereof in the preceding paragraph. It is amply clear from the said chart that none of the offences are covered by the offences under Chapter XII of the Indian Penal Code (hereinafter referred to as `the Code'). Even if the offences referred to in the show-cause notice against each of the petitioners were to be held as sufficient for initiating proposed action under Section 111 of the Code against the petitioners, what is significant to notice is that both the petitioners have been acquitted in at least three cases out of five cases. Insofar as petitioner No.1 is concerned, the pending cases against him are arising out of C.R.No. 3004/2005 punishable under Section 37(1)(3)/135 of Mumbai Police Act and C.R.No.26/2006 for offences punishable under Section 143, 147, 511 of the Code, Section 3 of the Maharashtra Prevention of Defacement of Property Act, 1995 and Section 37(1) (3)/135 of Mumbai Police Act. On the other hand, the two cases pending against petitioner No.2 are arising out of C.R.No.26/2006 punishable under Section 143, 147, 511 of the Code, Section 3 of the Maharashtra Prevention of Defacement of Property Act, 1995 and Section 37(1)(3)/135 of Mumbai Police Act and C.R.No.12/10 for offences punishable under Section 153(1)(B) of the Code.
12. Notably, the Authority issuing show-cause notice has proceeded on the basis that the other three criminal cases in which each of the petitioner has been acquitted are also pending trial and subjudice, which position is, on the face of it, false and incorrect. Insofar as petitioner No.1 is concerned, he has already been acquitted with regard to offence arising out of C.R.No.54/1996 which was tried as RCC 251/1996 and decided on 21st September, 2005. The petitioner No.1 has been acquitted even from the criminal case arising out of C.R.No.18/2008 which was registered and tried as RCC No.404/2008 decided on 30th October, 2009 and also C.R.No.19/2008 registered as RCC No.427 of 2008 decided on 17th July, 2009. Even the petitioner No.2 has been acquitted in the three criminal cases. Each of the three criminal cases arising out of C.R.No. 3016/2007 registered as Special Atrocity Case No.3 of 2008 decided on 22nd August, 2008, CR No.18/2008 registered as RCC 404/2008 decided on 30th October, 2009 and C.R.No.19 of 2008 registered as RCC No.427 of 2008 decided on 17th July, 2009. Nevertheless, as aforesaid, the Authority misdirected itself in stating in the show- cause notice that each of these cases were subjudice and pending trial. On this count alone, the show-cause notice suffers from the vice of non-application of mind if not colourable exercise of power. It is well established position that the criminal cases against the noticee which have ended in acquittal, cannot be reckoned for initiating action which is essentially a preventive action under Section 110 of the Code. It is incomprehensible that the Authority issuing show cause notice was not made aware of the fact that each of these petitioners have been acquitted in the respective criminal cases. It will be useful to refer to the dictum in Paragraph 10 of the decision of the Apex Court in the case of Abdul Razak Nannekhan Pathan v. Police Commissioner, Ahmedabad & Anr. Reported in 1989 SCC
43. The Court noted that the case in which the petitioner had already obtained acquittal could not be taken into consideration. Similar submission is noted in another decision of the Apex Court in the case of Ayub alias Pappukhan Nawabkhan Pathan v. S.N.Sinha & Anr. reported in (1990) 4 SCC 552 (see paragraph 5).
13. In this view of the matter, only two criminal cases could be reckoned for initiating action against the respective petitioners. Insofar as petitioner No.1 is concerned, only two other criminal cases arising out of CR No.3004/2005 and CR No.26/2006 are pending. In the first place, these stale cases cannot be the basis to proceed against the petitioner No.1. Besides, what is significant to note is that the criminal case arising out of CR No.26/2006 is in respect of activity of petitioner No.1 of taking hand driven cart full of garbage with placard "kachra pheko aandolan", "chalo MANPA", "Akaryakshan Mahanagar Palika". This, by no stretch of imagination, can be said to be offences of such gravity which would be covered by the rigours of Section 110 of the Code inviting preventive action against the petitioner No.1. Obviously, the petitioner No.1 was participating in a political movement. The other criminal case which also pertains to year 2006 and is still pending trial, is in relation to petitioner No.1 taking part in agitation in front of gate of Malegaon Municipal Council Building for agitating public cause. It is unfathomable that such cases would attract the requirement of dangerous person. This reflects on the subjective satisfaction of the Appropriate Authority in issuing show cause notice against petitioner No.1 as the said instances were not only stale but also not relevant to ignite the action under Section 110 of the Code.
14. Insofar as petitioner No.2 is concerned, the situation is no different. Significantly, both the petitioners are brothers. There is force in the grievance of the petitioners that the proposed action against them is to suppress their participation in political movement on issues concerning public. The only two cases pending against the petitioner No.2 are arising out of C.R. No.26/2006 and C.R.No. 12/2010. Insofar as criminal case arising out of C.R.No.26/2006, that can be no justification to resort to preventive action against the petitioner No.2. For, the said case is a stale one and could not have been reckoned for justifying action under Section 110 of the Code initiated in September, 2010. Besides, for the reasons already recorded while considering the case of the petitioner No.1 pertaining to C.R.No.26/2006, the same would apply to the petitioner No.2 as well. Both the petitioners are co-accused in the said case. The only other case against petitioner No.2 which could be taken into account is arising out of C.R.No.12 of 2010. The allegation against the petitioner No.2 in the said case is that during the Shivaji Jayanti Procession, he participated in bursting crackers. It is alleged that that may have given rise to communal riots. In the first place, this is the solitary case which may be relevant for consideration for proceeding against petitioner No.2 under Section 110 of the Code being latest in point of time. However, Section 110 of the Code is attracted only where the person is habitual offender in respect of specified offences and is so desperate and dangerous as of rendering his being at large without security is hazardous to the community. The expression `habit' or `habitual' has not been defined in the Code. The word `habitually' does not refer to the frequency of the occasions but to the invariability of a practice and the habit has to be proved by totality of facts. It, therefore, follows that the complicity of a person in an isolated offence is neither evidence nor a material of any help to conclude that the person is a dangerous person, unless there is material suggesting his complicity in the case which may lead to a reasonable conclusion that a person is a habitual criminal of specified offences. The petitioners have rightly relied on paragraph 5 of the Judgment in Ayub's case (supra) which reads thus: "5. Now we shall consider whether he comes within the meaning of 'dangerous person' as defined in Section 2(c) of the Act which reads as under:
"2.(c). "dangerous person" means a person, who either by himself or as a member of or leader of a gang, habitually commits, or attempts to commit or abets the commission of offences, punishable under Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code (45 of 1860), or any of the offences punishable under Chapter V of the Arms Act, 1959 (54 of 1959). " As per this definition, a person, who 'habitually' commits or attempts to commit or abets the commission of offences mentioned therein either by himself or as a member of or leader of a gang is a "dangerous person". The expression 'habitually' is very significant. A person is said to be a habitual criminal who by force of habit or inward disposition is accustomed to commit crimes. It implies commission of such crimes repeatedly or persistently and prima facie there should be a continuity in the commission of those offences. In Vijay Narain Singh v. State of Bihar MANU/SC/0135/1984 : 1984CriLJ909 , the majority explained the meaning of the word 'habitually' thus: (SCC p.34, para 31)
"The expression 'habitually' means 'repeatedly' or 'persistently'. It implies a thread of continuity stringing together similar repetitive acts. Repeated, persistent and similar, but not isolated, individual and dissimilar acts are necessary to justify an inference of habit. It connotes frequent commission of acts or omissions of the same kind referred to in each of the said sub-clauses or an aggregate of similar acts or omissions."
Rashidmiya @ Chhava Ahmedmiya Shaik v. Police Commr., Ahmedabad MANU/SC/0463/1989 : 3SCR182 , is yet another case where the scope of Section 2(c) of the Act came up for consideration before this Court and it is held that (para 14 of AIR):
"Therefore, this solitary incident would hardly be sufficient to conclude that the detenu was habitually committing or attempting to commit or abetting the commission of offences. "
It is not necessary to multiply the authorities of the Apex Court on this aspect.
15. Taking any view of the matter, therefore, the show cause notice issued by the Appropriate Authority against the respective petitioners which are subject matter of challenge in this Petition are palpably untenable and if allowed to be taken forward, will result in colourable exercise of power by the Authority.
16. Accordingly, the Petition ought to succeed. We, therefore, proceed to pass the following order:
:: O R D E R ::
i. Criminal Writ Petition No.3541/2010 is allowed. Rule is made absolute in terms of prayer clause (a) and the impugned show- cause notices issued against the present petitioners are quashed and set-aside.
ii. Criminal Writ Petition is disposed of accordingly.