Bombay High Court
Rajat S/O Sitaram Gurnule vs State Of Mha. Thr. Pso Ps Gadchiroli on 24 January, 2022
Author: Avinash G. Gharote
Bench: Avinash G. Gharote
1 43.REVN. 112-2021.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL REVISION APPLICATION (REVN) NO. 112 OF 2021
( Rajat S/o Sitaram Gurnule
Vs.
State of Maharashtra )
Office Notes, Office Court's or Judge's orders
Memoranda of Coram,
Appearances, Court's orders
or directions and Registrar's
orders
Mr. R.R. Vyas, Advocate for the Applicant.
Mrs. Shamsi Z. Haider, A.P.P. for the Non-Applicant/State.
CORAM: AVINASH G. GHAROTE, J.
DATED : 24th JANUARY, 2022.
Hearing was conducted through Video Conferencing and the learned counsel agreed that the audio and visual quality was proper.
2. Heard Mr. Vyas, learned counsel for the applicant and Mrs. Haider, learned APP for the non-applicant/State.
3. The present Revision challenges the order dated 23.11.2021, passed by the learned Sessions Court, Gadchiroli, refusing to entertain the request of the applicant, seeking his discharge under Section 227 of the Code of Criminal Procedure in Crime No. 469/2018 registered with the Police Station Gadchiroli for the offence under Sections 143, 149, 188, 290, 291, 341, and 353 read with Section 149 of the Indian Penal Code and 2 43.REVN. 112-2021.odt Section 135 of the Mumbai Police Act. The order dated 14.01.2022 in para 2 and 3, records the factual position as under :
"2. The applicant has been prosecuted under Sections 143, 149, 188, 290, 291, 353 and 135 of the Indian Penal Code, on the allegation, that on 20.10.2018, the applicant, had formed an unlawful assembly and were dancing to the tune played by the DJ, which is claimed to be without permission and when asked to stop by the authorities, had refused to do so and the vehicle carrying the DJ had run of and upon being apprehended and the instrument brought back the vehicle of the authorities was sought to be obstructed. The entire genesis stems from the contention, that there was no permission granted for playing the DJ and the assembly.
3. Mr. Vyas, learned counsel for the applicant, invites my attention to the communication by the Collector, Gadchiroli dated 17.10.2018 (page 100), which granted permission, to play the DJ and obviously the assembly, as the same was to be done on account of Navratri Durga Utsav, which was in consonance with the communication dated 27.04.2018 (page 101). He therefore submits, that since the playing of the DJ and dancing to its tune was in pursuance to the permission granted, the action of the authorities in obstructing such playing and dancing activities were contrary to the permission and thus all consequent action, would have the same colour, 3 43.REVN. 112-2021.odt on account of which, the prosecution could not be sustained. He further submits, that since the copy of permission dated 17.10.2018 was addressed to the Police Authorities also, they were specifically aware of the same, inspite of which, the action contrary thereto, was undertaken."
4. Mr. Vyas, learned counsel for the applicant submits, that when there was a blanket permission by the Collector Gadchiroli as indicated by permission dated 17.10.2018 which was in pursuance to the earlier order dated 27.04.2018, which was within the knowledge of the non-applicant/State, the action of the Police Authorities in obstructing the procession, on the ground of asking the organizers to produce the specific permission, itself was contrary to the permission already granted on 17.10.2018. He therefore submits, that the consequent reaction, of the persons present there, could not be faulted with, as that was the natural reaction, considering the general apprehension present in the mind of the public at large, regarding the actions which may be initiated by the Police Authorities. The entire complaint is based upon the basic premise, that the procession was taken out without permission and the playing by the DJ was also without permission and when the persons, in the procession as well as those dancing to the tune of the DJ were asked to stop it, they had refused to do so, and therefore, were charged with the aforesaid offence.
5. Insofar as, the present applicant is concerned, the statements of Sunil Besarkar, Sudhir Babanwade, 4 43.REVN. 112-2021.odt Vasant Gurnule, Chandrabhan Chaudhary, Vishwanath Pendam, Kishor Dhanfhole, Sandeep Zhanzad, Ghanshyam Gavture, Gautam Sahare, Vilas Urade, Shrihari Gaurkar and Laxman Mohruule all indicate that the applicant was only dancing to the tune of the DJ in the procession taken out for the immersion of the idol. It has also been alleged, that when the DJ music system was sought to be taken away, the same was sought to be obstructed by all those present, including the applicant, apart from which, no other action is attributed to the applicant.
6. The action of taking away the DJ music system and asking the persons participating in the procession, for immersion of the idols, to produce the permission, itself was an action, by the Police Authorities contrary to the permission already granted, which would be reflected from the copy of the permission dated 17.10.2018, placed on record page 100 which also indicates, that all Durga Mandals in the entire Gadchiroli District were permitted to take out the procession for immersion of Durga idols, and also to play music within the permissible limits of the noise pollution (Rules and Regulations) Act, 2000. The permission dated 17.10.2018, issued by the Collector, Gadchiroli, who was the undisputed authority to have issued the same indicates that copy of the said permission was already forwarded to the Superintendent of Police, Gadhcilroli as well as the Sub Divisional Police Officer, Gadchiroli, which would indicate that the Police Authorities were fully aware of the grant of permission, 5 43.REVN. 112-2021.odt for assembly of persons for the purpose of taking out procession for immersion of the idols and so also the permission granted to play music on the DJ, in such processions, within the permissible limits. This being the position, there was no reason whatsoever for the Police Authorities to have asked for a specific permission, from the organizers of Jai Bajrang Durga Mandal, since the permission granted by the order dated 17.10.2018, was omnibus and was applicable to all Durga Mandalas. This being the position, the initial action on part of the Police Authorities, itself in asking for the permission was incorrect, considering which, it was not permissible for the Police Authorities to have entered into an action to take away the music playing system. The action attributed, to the applicant, of being a part of procession for immersion of the idols, and dancing to the tune of DJ, therefore, could not, in the light of permission granted, considered to be something which was contrary to the law. The action sought to be attributed to the applicant in trying to obstruct in taking away of the music system, by the Police Authorities is not specific, but is a merely omnibus allegation, which is made against all those present. It is necessary to note, that when the role of the Police Authorities in such procession was merely to ensure that the law and order initiated was maintained, instead of doing so, the Police Authorities acted, contrary to the order dated 17.10.2018, in insisting for the specific permission for taking out the procession and playing the music in such a procession, and thus in my considered opinion, considering the permission granted on 6 43.REVN. 112-2021.odt 17.10.2018, the provisions of Sections 141, 142, 188, 290, 291 of the Indian Penal Code are clearly not attracted. Insofar as, Section 353 of the Indian Penal Code is concerned, there is no specific role attributed to the applicant and merely omnibus and generalized allegations have been made, considering which, in my considered opinion, this is a fit case where the learned Court below ought to have accepted the plea raised by the applicant under Section 227 of the Code of Criminal Procedure.
7. In view of what has been discussed above, the order dated 23.11.2021, passed by the Additional Sessions Judge, Gadchiroli in Sessions Case No. 53/2021, is hereby quashed and set-aside and the request for discharge of the applicant under Section 227 of the of the Code of Criminal Procedure is accepted.
JUDGE SD. Bhimte Signed By:SHRIKANT DAMODHAR BHIMTE Signing Date:25.01.2022 11:10