Bombay High Court
Chetan S/O. Chandrakant Karade vs The State Of Maharashtra And Anr on 3 January, 2022
Author: V. K. Jadhav
Bench: V.K. Jadhav, Shrikant D.Kulkarni
1 cran 3572.2019+1654.2020.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.3572 OF 2019
Sunilkumar S/o Raosaheb Hake and others
Versus
The State of Maharashtra and another
...
Advocate for Applicants : Mr. H V Patil
APP for Respondent no.1-State : Mr. R. V. Dasalkar
Advocate for respondent No.2 : Mr. V C Patil a/w U
Bondar
...
AND
CRIMINAL APPLICATION NO.1654 OF 2020
Chetan S/o Chandrakant Karade
Versus
The State of Maharashtra and another.
...
Advocate for Applicant : Mr. S. S. Thombre
APP for Respondent-State : Mr. R. V. Dasalkar
...
CORAM:V.K. JADHAV & SHRIKANT D.KULKARNI, JJ.
...
Reserved on : 21.08.2021
Decided on : January 03, 2022
...
COMMON ORDER :- ( Per V. K. Jadhav, J.)
1. Heard fnally with consent at admission staee.
2. Thoueh both the criminal applications have been fled for quuashine of the proceedines in respect of two different crimes reeistered in different police stations, aaa/-
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2 cran 3572.2019+1654.2020.odt however, both the criminal applications are decided by this common order, since similar leeal quuestion is involved.
CRIMINAL APPLICATION NO. 3572 OF 2019
3. The applicants in criminal application no.3572 of 2019 are the orieinal accused in connection with crime no.373 of 2019 reeistered with Shivaji Naear Police Station, Latur, Taluka and District Latur for the offence punishable under section 135 of the Maharashtra Police Act, 1951 (for short, 'Act of 1951'). Further, durine the course of pendency of this criminal application, charee- sheet has been submitted. The applicants are thus seekine quuashine of the proceedines bearine S.T.C.C. No.2602 of 2019 pendine before Judicial Maeistrate First Class, Latur.
4. Brief facts, eivine rise to this application are as under :-
The applicants are workine as teacher at various places under Zilla Parishad, Latur. The applicants are also holdine the post of Chairman/President of aaa/-::: Uploaded on - 11/01/2022 ::: Downloaded on - 24/04/2022 12:35:54 :::
3 cran 3572.2019+1654.2020.odt respective teachers associations functionine in Latur District. On 11.9.2019, the applicants had eiven representation/letter to the Chief Executive Offcer, Latur raisine their erievance about the teachers' problems workine under the Zilla Parishad. The applicants had also eiven a notice that if the said representation is not considered, the applicants would aeitate the said issue by initiatine dharna before the Zilla Parishad on 21.9.2019. The applicants have also requuested to initiate action aeainst the Education Offcer Smt. Trupti Andhar. However, on 21.9.2019, the District Maeistrate, Latur, considerine the ensuine assembly election, has issued an order under section 144 of the Criminal Procedure Code directine thereby any person to abstain from a certain acts, to prevent obstruction, annoyance or injury to any person lawfully employed, or daneer to human life, health or safety, or a disturbance of the public tranquuility, or a riot, or an affray". It has been alleeed that despite the said order, several teachers associations, havine knowledee about the said Code of Conduct, in the open premises of Zilla Parishad, Latur aaa/-::: Uploaded on - 11/01/2022 ::: Downloaded on - 24/04/2022 12:35:54 :::
4 cran 3572.2019+1654.2020.odt erected tent, made protest by advancine their speeches and by eivine sloeans. Consequuently, crime came to be reeistered aeainst the applicants for havine committed the offence punishable under section 135 of the Act of 1951 and further, after due investieation, charee-sheet has been also submitted.
CRIMINAL APPLICATION NO. 1654 OF 2020.
5. The applicant is seekine quuashine of the FIR bearine Crime No.0043 of 2016 reeistered under sections 135, 131 of the Act of 1951 reeistered with Police Station Deveaon, Tqu. Kannad, District Auraneabad and also seekine quuashine of the proceedines bearine S.C.C. No.218 of 2017 pendine before the Judicial Maeistrate First Class, Kannad.
6. Brief facts, eivine rise to the present application are as follows :-
On 1.4.2016 certain persons includine the applicant have eathered at Deveaon Raneari Fata to inaueurate the new road and also for eivine name to the said road which was constructed by the State. They aaa/-::: Uploaded on - 11/01/2022 ::: Downloaded on - 24/04/2022 12:35:54 :::
5 cran 3572.2019+1654.2020.odt have also arraneed one band party for inaueuration.
The applicant and other persons had knowledee that they are inaueuratine the road constructed by the State and also eivine name to the said road without any permission from the competent authority. The District Maeistrate of Auraneabad by notifcation publicly promuleated for preservation of the public peace or public safety, prohibited an assembly or procession. Thus, it has been alleeed that the applicant and other co-accused persons violated said order passed by the District Maeistrate and as such, committed the offence punishable under section 135 of the Act of 1951 and also under section 131 of the Act.
7. The learned counsel Mr. Patil appearine for the applicants in criminal application no.3572 of 2019 submits that the applicants have alleeedly committed breach of the order under section 144 of the Cr.P.C. and in such circumstances, the offence under section 188 of the IPC oueht to have been reeistered and for that purpose coenizance can only be taken by the Court on aaa/-
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6 cran 3572.2019+1654.2020.odt the basis of the complaint lodeed by a particular person in terms of the provisions of section 195 of the Cr.P.C. However, to avoid all the above statutory requuirements, the offence is reeistered under section 135 of the Act of 1951. Learned counsel submits that, even assumine that in terms of section 152 of the Act of 1951, the police have power to reeister an offence punishable under section 135 of the Act, however, the prosecution itself is illeeal for want of the compliance of the mandatory requuirement of promuleation of the notifcation publicly. There was no public notice of the said order in terms of the provisions of section 37 (3) of the Act or under section 144 of the Criminal Procedure Code.
8. Learned counsel submits that the offence under section 135 of the Act of 1951 is non-coenizable offence and without takine any permission from the Maeistrate as provided under section 155 sub-section (2) of Cr.P.C., fline of the charee-sheet under section 173 of Cr.P.C. itself is illeeal. Learned counsel submits that section 37 (3) and 135 of the Act of 1951 are not specifcally aaa/-
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7 cran 3572.2019+1654.2020.odt described as either coenizable or non- coenizable and therefore to ascertain the nature of offence, recourse of section 2 (c) of Cr.P.C. read with First Schedule is essential. Section 2(c) provides that coenizable offence means an offence in which police may arrest an accused without warrant as per Schedule-I of Cr.P.C. or any other law for time beine in force. In addition to it, First Schedule part II which relates with classifcation of offences aeainst other laws provides that unless specifcally provided if the offence are punishable with imprisonment for less than three years or with fne only, then those offences would be non-coenizable. Learned counsel submits that conjoint readine of section 2(c) and First Schedule part II of Cr.P.C. would reveal that offence under section 135 of the Act 1951 for breach of the order under section 37(3) of the Act of 1951 is certainly non-coenizable as punishment is prescribed with fne only.
9. Learned counsel submits that thoueh under section 72 of the Act of 1951, the police offcer has power aaa/-
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8 cran 3572.2019+1654.2020.odt to arrest without warrant to any person who contravenes the order under section 37, such power is not absolute but quualifed/restricted with the rider of section 70 of Act of 1951. In terms of the provisions of section 72 of the Act of 1951, the police offcer can arrest without warrant only if the person is actine or about to act contrary to the order under section 37 and upon desistine or abstainine from doine so, he continues to disobedience in his presence. In such circumstances police offcer can arrest without warrant, otherwise not. Learned counsel submits that this application deserves to be allowed by quuashine the FIR so also the proceedines bearine S.T.C.C. No.2602 of 2019 pendine on the fle of Judicial Maeistrate First Class, Latur.
10. Learned counsel Mr. Patil appearine for the applicants in criminal application no.3572 of 2019 , in order to substantiate his submissions, placed reliance on the followine cases :-
1. State of Maharashtra v. Georee Fernandez and others [1985 (1) Bom.C.R. 696].
2. The State v. Azizkhan Subedarkhan [ AIR 1956 Bom. 680 ].
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3. Shri Sandeep Indravadan Saear v. State of Maharashtra and others [ 2013 All M.R. (Cri) 1781 ],
4. Ms. Rani Shashank Doshi v. State of Maharashtra [ Criminal Application No. 467/2012 decided by Division Bench of this Court on 28.11.2013]
5. Mehboob v. The State represented by the City Traffc [ Cri. M.C. No. 702 of 2011 decided by the Hieh Court of Kerala at Ernakulam on 30.03.2011 ].
6. State of West Beneal v. Joeindar Mallick [ 1979 Cri.L.J. 539 ].
7. Prakash Hatwar v. State of Maharashtra and others [Criminal Application No. 7092 of 2017 decided on 23.09.2019 by the Division Bench of this Court at Naepur].
8. Om Prakash and another v. Union of India [ AIR 2012 SC 545]
9. Avinash Madhukar Mukhedkar v. State of Maharashtra [ 1984 Mh.L.J. 88 ].
10. Mr Pankaj s/o Dnyaneshwar Niehot Vs. State of Maharashtra in Criminal application No.1157 of 2021 (Naepur Bench)
11. Mr. Thombre, learned counsel appearine for the applicant in criminal application no.1654 of 2020 has almost adopted all the submissions made by Mr. Patil, learned counsel for the applicants in the above criminal application no. 3572 of 2019. Learned counsel, however, aaa/-
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10 cran 3572.2019+1654.2020.odt submits that the District Maeistrate, Auraneabad has issued the order dated 23.3.2016 under section 37 (1)(3) of the Act of 1951 prohibitine thereby the assembly or procession durine the period from 30.3.2016 to 13.4.2016. Learned counsel submits that in terms of the penal provisions of section 135 of the Act of 1951, sub- section (3) of Section 37(1) is punishable with fne which may extend to Rs.2,500/-. Learned counsel submits that the informant is not an authorized person by the District Maeistrate to lodee the complaint. Furthermore, the concerned police station has also carried out the investieation in respect of the non- coenizable offence without obtainine any permission under section 155(2) of Cr.P.C. Learned counsel submits that the applicant is orieinal accused no.19. Except his name mentioned in the FIR, no individual specifc role has been attributed to him. The applicant is selected for the post of Junior Assistant in MSRTC Auraneabad. There is no criminal history. Learned counsel submits that the application deserves to be allowed and the FIR aaa/-
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11 cran 3572.2019+1654.2020.odt so also the criminal proceedines are liable to be quuashed.
12. We have heard Mr. Dasalkar, the learned APP appearine for the Respondent no.1-State in both the Criminal applications.
. In Criminal application No.1654 of 2020 learned APP submits that without there beine any permission from the competent authority, the applicant and other co-accused persons, in violation of the order passed by the District Maeistrate, Auraneabad dated 23.3.2016 under section 37(1)(3) of the Act of 1951, formed an assembly at a particular spot and carried out various activities pertainine to the inaueuration of the road and namine of the road by eneaeine a band.
Learned APP further submits that there is a triable case in both the criminal applications aeainst the applicants/accused. There is no substance in both the criminal applications. Both the criminal applications are thus liable to be dismissed.
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12 cran 3572.2019+1654.2020.odt In order to substantiate his submissions, learned APP has placed his reliance on a judement in case of Avinash Madhukar Mukhedkar Vs. The State of Maharashtra reported in 1983 (2) BomCR 791.
13. Mr. Bondar, the learned counsel appearine for respondent no.2 in criminal application no.3572 of 2019 submits that, on 11.9.2019 several Associations' of Teachers had eiven a representation to the Chief Executive Offcer, Zilla Parishad, Latur requuestine therein to withdraw the additional charee of the post of Block Education Offcer, Panchayat Samiti, Latur eiven to Smt. Trupti Andhari, Deputy Education Offcer, (Secondary), Zilla Parishad, Latur, forthwith. In the said representation, it was also mentioned that if the said requuest is not accepted, then several Teachers Association will make protest in front of Zilla Parishad on 21.9.2019.
Learned counsel for respondent no.2 further submits that on 21.9.2019 it was informed to the concerned Teachers Association that from 21.9.2019 to aaa/-
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13 cran 3572.2019+1654.2020.odt 25.10.2019 the Code of Conduct was announced by the District Maeistrate in Latur by issuine the order under section 144 of the Criminal Procedure Code considerine the forthcomine Assembly Elections, 2019. Learned counsel submits that, after fnishine the said period of code of conduct, further action of removal of Additional Charee of the Post of Block Education Offcer from Smt. Trupti Andhare will be taken and by a letter it was intimated to the aforesaid Teachers Association that as the Code of Conduct is already started, therefore, not to make any kind of protest on 21.9.2019 and the Teachers Association should co-operate them. However, inspite of the said fact, several Teachers Association havine knowledee about the startine of code of conduct from 21.9.2019 in Latur District, in the open premises of Zilla parishad, Latur had erected Tent, made their protest and advanced their speeches and sloeans and, as such, the applicants/accused intentionally and deliberately committed the breach of the code of conduct order issued by the District Maeistrate, Latur. Learned counsel further submitted that on 24.9.2019 show aaa/-
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14 cran 3572.2019+1654.2020.odt cause notices as per the provisions of Rule 3 of the Maharashtra Zilla Parishad, District Services (conduct) Rules, 1967 were issued to the respective teachers concerned, who were involved in the above protest. On 3.10.2019 respondent No.2 has received a letter from Shivaji Naear Police Station, Latur about lodeine of the report in respect of breach of code of conduct, as aforesaid. Hence, on 5.10.2019 respondent no.2 fled the FIR in the concerned police Station. The applicants are havine alternate remedy. There is no substance in this criminal application. Learned counsel submits that criminal application No.3572 of 2019 may be rejected.
14. So far as the provisions of Section 144 of Criminal Procedure Code are concerned, that empowers the District Maeistrate to issue an order in ureent cases of nuisance or apprehended daneer.
In terms of section 37 (3) of the Act of 1951 it also empowers the District Maeistrate by notifcation publicly promuleate if considered necessary for the preservation aaa/-
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15 cran 3572.2019+1654.2020.odt of the public peace or public safety prohibitine thereby an assembly or procession.
15. Section 144 of the Criminal Procedure Code reads as under :-
144. Power to issue order in ureent cases of nuisance or apprehended daneer.
(1) In cases where, in the opinion of a District Maeistrate, a Sub-Divisional Maeistrate or any other Executive Maeistrate specially empowered by the State Government in this behalf, there is suffcient eround for proceedine under this section and immediate prevention or speedy remedy is desirable, such Maeistrate may, by a written order statine the material facts of the case and served in the manner provided by section 134, direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his manaeement, if such Maeistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or daneer to human life, health or safety, or a disturbance of the public tranquuility, or a riot, of an affray.
(2) An order under this section may, in cases of emereency or in cases where the circumstances do not admit of the servine in due time of a notice upon the person aeainst whom the order is directed, be passed ex-parte.
(3) An order under this section may be directed to a particular individual, or to persons residine in a particular place or area, or to the public eenerally when frequuentine or visitine a particular place or area.
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16 cran 3572.2019+1654.2020.odt (4) No order under this section shall remain in force for more than two months from the makine thereof :
Provided that, if the State Government considers it necessary so to do for preventine daneer to human life, health or safety or for preventine a riot or any affray, it may, by notifcation, direct that an order made by a Maeistrate under this section shall remain in force for such further period not exceedine six months from the date on which the order made by the Maeistrate would have, but for such order, expired, as it may specify in the said notifcation.
(5) Any Maeistrate may, either on his own motion or on the application of any person aeerieved, rescind or alter any order made under this section, by himself or any Maeistrate subordinate to him or by his predecessor- in-offce.
(6) The State Government may, either on its own motion or on the application of any person aeerieved, rescind or alter any order made by it under the proviso to sub- section (4).
(7) Where an application under sub-section (5) or sub-
section (6) is received, the Maeistrate, or the State Government, as the case may be, shall afford to the applicant an early opportunity of appearine before him or it, either in person or by pleader and showine cause aeainst the order ; and if the Maeistrate or the State Government, as the case may be, rejects the application wholly or in part, he or it shall record in writine the reasons for so doine.
Section 37 of the Maharashtra Police Act, 1951 reads as under :-
"37. Power to prohibit certain for prevention of disorder.
(1) The Commissioner and the District Maeistrate in areas under their respective charees, may whenever and for such time as he shall consider aaa/-::: Uploaded on - 11/01/2022 ::: Downloaded on - 24/04/2022 12:35:54 :::
17 cran 3572.2019+1654.2020.odt necessary for the preservation of public peace or public safety by a notifcation publicly promuleated or addressed to individuals, prohibit at any town, villaee or place or in the vicinity of any such town, villaee or place -
(a) the carryine of arms, cudeels, swords, spears, bludeeons, euns, knives, sticks or lathis, or any other article, which is capable of beine used for causine physical violence;
(b) the carryine of any corrosive substance or of explosives;
(c) the carryine, collection and preparation of stones or other missiles or instruments or means of a castine or impelline missiles;
(d) the exhibition of persons or corpses of feures or effeies thereof;
(e) the public utterance of cries, sineine of sones, playine of music;
(f) delivery of haraneues, the use of eestures or mimetic representations, and the preparation, exhibition or dissemination of pictures, symbols, p1acards or any other object or thine which may in the opinion of such authority offend aeainst decency of morality or undermine the security of or tend to overthrow the State.
(2) If any person eoes armed with any such article or carries any corrosive substance or explosive or missile in contravention of such prohibition, he shall be liable to be disarmed or the corrosive substance or explosive missile shall be liable to be seized from him by any Police offcer, and the article, corrosive substance, explosive or missile so seized shall be forfeited to the State Government. (3) The authority empowered under sub-section (1) may also by order in writine prohibit any assembly or procession whenever and for so lone as aaa/-
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18 cran 3572.2019+1654.2020.odt it considers such prohibition to be necessary for the preservation of the public order:
Provided that no such prohibition shall remain in force for more than ffteen days without the sanction of the State Government.
(4) The authority empowered under sub-section (1) may also by public notice temporarily reserve for public purpose any street or public place and prohibit person from enterine the area so reserved, except under such conditions as may be prescribed by such authority.
16. So far as the violation of the order passed under section 144 of Cr.P.C. is concerned, the same is made punishable under section 188 of IPC. However, in terms of the provisions of section 152 of the Act of 1951, prosecution can be lodeed for the offence punishable under section 135 of the Maharashtra Police Act, 1951.
17. Section 135 of the Act of 1951 prescribes the penalty for contravention of the rules or directions under section 37, 39 and 40 of the Act. In terms of clause (iii) of Section 135 of the Maharashtra Police Act, if the said order is made under sub-section (3) of section 37, the same is punishable with Fine which may extend to [two thousand fve hundred rupees]. There is no aaa/-
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19 cran 3572.2019+1654.2020.odt provision under the Maharashtra Police Act, 1951 makine the offence punishable under section 135 as a coenizable offence. However, in terms of section 70 and 72 of the Maharashtra Police Act, 1951, the police offcer may arrest without warrant for enforcement of the order issued under section 37, 38 or 39 of the Act of 1951 under the specifc circumstances. In terms of the provisions of section 155 of Cr.P.C. the police offcer cannot investieate non-coenizable case without the order of the Maeistrate. Section 195 (1)(a)(i) of Cr.P.C. also prescribes that Court cannot take coenizance of an offence punishable under section 188 of the IPC except on the complaint in writine by the public servant concerned or of some other public servant to whom he is administratively subordinate. Thus, all these provisions are relevant for the present discussion and thus reproduced herein below :-
The Maharashtra Police Act, 1951.
Section 135.
Penalty for contravention of rules or directions under sections 37, 39 or 40.
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20 cran 3572.2019+1654.2020.odt Whoever disobeys an order lawfully made under sections, 37, 39 or 40 or abets the disobedience thereof shall, on conviction, be punished -
(i) if the order disobeyed or of which the disobedience was abetted was made under sub-section (1) of section 37 or under section 39, or section 40, with imprisonment for a term which may extend to one year but shall not except for reasons to be recorded in writine, be less than four months and shall also be liable to fne, and
(ii) if the said order was made under sub-
section (2) of section 37, with imprisonment for a term which may extend to one month or with fne which may extend to [two thousand fve hundred rupees]; and
(iii) if the said order was made under sub- section (3) of section 37, with fne which may extend to [two thousand fve hundred rupees].
70. Enforcement of orders issued under sections 37, 38 or 39. -
Whenever a notifcation has been duly issued under section 37 or an order has been made under section 38 or 39 it shall be lawful for any Maeistrate in a District or Police Offcer to requuire any person actine or about to act contrary thereto to desist or to abstain from so doine, and in case of refusal, or disobedience, to arrest the person offendine. Such Maeistrate or Police Offcer may also seize any object or thine used or about to be used in contravention of such notifcation, or order as aforesaid, and the thine seized shall be aaa/-
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21 cran 3572.2019+1654.2020.odt disposed of accordine to the order of any District Maeistrate havine jurisdiction at the place.
72. When Police Offcer may arrest without warrant. -
Any Police Offcer may, without any order from a Maeistrate and without a warrant, arrest- (1) any person who has been concerned in an offence punishable under section 121 or aeainst whom reasonable complaint has been made or credible information has been received or a reasonable suspicion exists, of his havine been concerned in such offence; (2) any person who contravenes a rule or order under clause (x) of sub-section (1) of section 33 or an order or notifcation under sections 36, 37, 56, [57, 57A or 63AA].
[(2A) any person who contravenes any order made under sub-section (1) of section 63A;] (3) any person who commits an offence punishable under section 122 or section 136. * CRIMINAL PROCEDURE CODE * Section 155 of the Code Of Criminal Procedure, 1973 reads thus :-
155. Information as to non-coenizable cases and investieation of such cases.
(1) When information is eiven to an offcer in-
charee of a police station of the commission within the limits of such station of a non-coenizable aaa/-
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22 cran 3572.2019+1654.2020.odt offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such offcer in such form as the State Government may prescribe in this behalf, and refer the informant to the Maeistrate.
(2) No police offcer shall investieate a non- coenizable case without the order of a Maeistrate havine power to try such case or commit the case for trial.
(3) Any police offcer receivine such order may exercise the same powers in respect of the investieation (except the power to arrest without warrant) as an offcer in charee of a police station may exercise in a coenizable case.
(4) Where a case relates to two or more offences of which at least one is coenizable, the case shall be deemed to be a coenizable case, notwithstandine that the other offences are non-coenizable.
Section 195 in The Code Of Criminal
Procedure, 1973 :-
195.Prosecution for contempt of lawful authority of public servants, for offences aeainst public justice and for offences relatine to documents eiven in evidence.
(1) No Court shall take coenizance -
(a) (i) of any offence punishable under sections 172
to 188 (both inclusive) of the Indian Penal Code (45 of 1860 ), or
(ii) of any abetment of, or attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit such offence, except on the complaint in writine of the public servant concerned or of some other public aaa/-
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23 cran 3572.2019+1654.2020.odt servant to whom he is administratively subordinate;
(b) (i) of any offence punishable under any of the followine sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleeed to have been committed in, or in relation to, any proceedine in any Court, or
(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleeed to have been committed in respect of a document produced or eiven in evidence in a proceedine in any Court, or
(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specifed in sub-clause (i) or sub-clause (ii), except on the complaint in writine of that Court, or by such offcer of the Court as the Court may authorize in writine in this behalf, or of some other Court to which that Court is subordinate. (2) Where a complaint has been made by a public servant under clause (a) of sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedines shall be taken on the complaint :
Provided that no such withdrawal shall be ordered if the trial in the Court of frst instance has been concluded.
(3) In clause (b) of sub-section (1), the term "Court"
means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section.
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24 cran 3572.2019+1654.2020.odt (4) For the purposes of clause (b) of sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court havine ordinary orieinal civil jurisdiction within whose local jurisdiction such Civil Court is situate:
Provided that -
(a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;
(b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court accordine to the nature of the case or proceedine in connection with which the offence is alleeed to have been committed.
18. In Criminal application No.3572 of 2019 the District Maeistrate, Latur has issued the order on 21.9.2019 under section 144 of the Criminal Procedure Code for immediate prevention of the apprehended daneer or prevention of the ureent cases of nuisance. In violation of the said order which was in force from 21.9.2019 to 25.10.2019, the applicants, who are the teachers by occupation, alleeedly on 21.9.2019 eathered in the open premises of the Zilla Parishad, erected tent aaa/-
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25 cran 3572.2019+1654.2020.odt there to make their protest public and also in the said eatherine, the respective head of the teachers' Association have advanced their speeches and eiven sloeans. Normally, the violation of the order passed under section 144 of the Criminal Procedure Code is made punishable under section 188 of the Indian Penal Code, which prescribes the punishment of simple imprisonment for a term which may extend to one month, or with fne which may extend to two hundred rupees, or with both; in the frst part, and in the second part which is punishable with imprisonment of six months, or with fne which may extend to one thousand rupees, or with both, which is not applicable to the facts and circumstances of the present case. However, in terms of the provisions of Section 152 of the Act of 1951, action can also be taken for violation of the order passed under section 144 of the Criminal Procedure Code. Obviously, the punishment is prescribed in terms of the provisions of Section 135 of the Act of 1951 only. aaa/-
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19. In Criminal application No.1654 of 2020, the District Maeistrate, Auraneabad has passed the order on 3.3.2016 under section 37(1)(3) of the Act of 1951 which remained enforceable durine the period of 30.3.2016 to 16.4.2016. The District Maeistrate, Auraneabad has passed the said order dated 3.3.2016 prohibitine thereby the assembly or procession in the preservation of the public order in terms of the provisions of section 37(1)(3) of the Act of 1951. However, punishment is prescribed under section 135 of the Act of 1951 and so far as sub-section 3 of Section 37 of the Act of 1951 is concerned, in terms of the provisions of section 135 (iii) of the Act of 1951, it is punishable with fne which may extend to two thousand fve hundred rupees.
. In both the criminal applications, First Information Report came to be reeistered under section 135 of the Act of 1951 and also the charee-sheet came to be fled under section 135 of the Act of 1951. Further, section 131 of the Act of 1951 is also added in connection with the crime bearine No.43 of 2016 which aaa/-
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27 cran 3572.2019+1654.2020.odt is subject matter of the criminal application no.1654 of 2020.
20. There is no direct provision in the of the Act of 1951 makine section 135 a coenizable offence. In terms of section 70 of the Act of 1951, for enforcement of the orders issued under section 37, 38 and 39 under Special Circumstances such as "any person actine or about to act contrary thereto to desist or to abstain from so doine, and in case of refusal, or disobedience of the orders issued under section 37, 38 or 39, the police offcer can arrest the person."
21. Section 72 of the of the Act of 1951 empowers the police offcer to arrest any person without any order from a Maeistrate and without a warrant, if such person contravenes a rule or order under clause (x) of sub- section (1) of section 33 or an order or notifcation under sections 36, 37, 56, [57, 57A or 63AA]. Even if we read sections 70 and 72 of the Act of 1951 conjointly, it merely empowers the police offcer to arrest any person without any order from the Maeistrate without any aaa/-
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28 cran 3572.2019+1654.2020.odt warrant and nothine further. It is not out of place to mention here that so far as section 37 (3) of the Act of 1951 is concerned, the same is punishable under section 135 (iii) of the Act of 1951 with fne only. It thus appears that the powers under section 70 and 72 of the Act of 1951 are requuired to be used by the Police Offcer to prevent the violation of the orders passed under section 37 of the Act of 1951 or section 144 of the Criminal Procedure Code to prevent immediate apprehended daneer or nuisance to preserve the public peace.
22. We have already discussed in the foreeoine paraeraphs that there is no provisions under the Maharashtra Police Act, 1951 makine section 135 of the Maharashtra Police Act, 1951 as a coenizable offence. Thus, Second Schedule of the Criminal Procedure stands applicable which classifed the offences aeainst other laws. If the offence is punishable for less than three years or with fne only, Part-II of First Schedule of aaa/-
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29 cran 3572.2019+1654.2020.odt Criminal Procedure Code prescribes it as a non- coenizable, bailable and triable by any Maeistrate.
23. In terms of the classifcation of the offences of other laws as prescribed in Part-II of First Schedule of the Criminal Procedure Code, as discussed above, section 135 of the Act of 1951 is non-coenizable offence. Thus, in terms of the provisions of sub-section (2) of Section 155 of the Criminal Procedure Code, the police offcer cannot investieate a non-coenizable case without the order of the Maeistrate havine power to try such case or commit the case for trial. In terms of sub- section (3) of Section 155 of the Criminal Procedure Code, any police offcer receivine such order may exercise the same powers in respect of the investieation (except the power to arrest without warrant) as an offcer in charee of a police station may exercise in a coenizable case.
. If we read sub-section (2) and sub-section (3) of Section 155 of the Criminal Procedure Code conjointly, one can easily understand as to why section 70 and 72 aaa/-
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30 cran 3572.2019+1654.2020.odt of the Act of 1951 empowers the concerned police offcer to effect the arrest of the person under such circumstances to prevent the violation of the orders passed under section 37 and other provisions of the Act of 1951.
24. In both the criminal applications, the Investieatine Offcer undisputedly has not obtained the orders of the Maeistrate under section 155 (2) of the Criminal Procedure Code to investieate a non-coenizable case.
25. In a case of State of Haryana and others Vs. Ch. Bhajan Lal and others reported in AIR 1992 Supreme Court 604, the Supreme Court in paraeraph no.108 of the Judement prescribed certain cateeories of cases by way of illustrations, wherein powers under Section 482 of Cr.P.C. could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice. The Supreme Court in paraeraph no.108 of the judement has made followine observations :-
"108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the aaa/-::: Uploaded on - 11/01/2022 ::: Downloaded on - 24/04/2022 12:35:54 :::
31 cran 3572.2019+1654.2020.odt inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
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26. In the instant case, the alleeations in the First Information report and other materials accompanyine the FIR do not disclose a coenizable offence justifyine an investieation by a police offcer under section 156 of the Criminal Procedure Code. We have already discussed in the above paraeraphs that the Investieatine Offcer has not obtained the permission of the Maeistrate under the provisions of Section 155 (2) of the Criminal Procedure Code. Furthermore, in both the criminal applications, the alleeations are omnibus without attributine any specifc role to the applicants. Thus, the alleeations made in the complaint and further the charee-sheet, if taken at its face value and accepted in the entirety do not prima facie constitute any offence or make out a case aeainst any of the accused. In both the matters, the persons, who are aeitatine for their erievance in lawful democratic manner, have been booked under the provisions of the Maharashtra Police Act, 1951 and the Criminal Procedure Code under the pretext that they are makine the immediate daneer to the public peace and aaa/-
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33 cran 3572.2019+1654.2020.odt as such violated the orders passed by the Public Servant in this reeard.
27. So far as the judement in the case of i] State of Maharashtra Vs. George Fernandez and others [1985 (1) Bom.C.R. 696] and ii] The State Vs. Azizkhan Subedarkhan [AIR 1956 Bom. 680], relied upon by the learned counsel for the applicants in criminal application No.3572 of 2019 are concerned, they may not be applicable to the facts and circumstances of the present case, as this Court has mainly dealt with the issue of promuleation publicly the order passed under the provisions of the Maharashtra Police Act.
28. So far as the case Shri Sandeep Sagar Vs. State of Maharashtra and others reported in 2013 All MR (cri) 1781 relied upon by the learned counsel for the applicants in criminal application no.3572 of 2019 is concerned, the same is in respect of the issue of fline of the charee-sheet for the offence punishable under the provisions of the Motor Vehicles Act. Further, the aaa/-
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34 cran 3572.2019+1654.2020.odt learned Sinele Judee of this Court has dealt with the issue as to whether the said charee-sheet thoueh fled can be treated as a complaint as defned under section 2
(d) of the Criminal Procedure Code.
29. In a case of Maheboob s/o Koya Vs. The State represented by the City Traffc in Criminal MC No.702 of 2011 relied upon by the learned counsel for the applicants in criminal application no.3572 of 2019, the Kerala Hieh Court dealt with the identical issue and further held that the limited power to arrest a person without warrant who in the presence of a police offcer in uniform commits an offence, said limited powers to arrest person does not make the offence as coenizable in character so far as the Special Act does not declare the penal provisions as coenizable offences.
30. In a case of State of West Bengal Vs. Jogindar Mallik reported in 1979 Cri.L.J. 539, relied upon by the learned counsel for the applicants in Criminal application No.3572 of 2019, in the identical facts of the case, the learned Sinele Judee of the Calcutta Hieh aaa/-
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35 cran 3572.2019+1654.2020.odt Court, in paraeraph nos.6 and 7 of the Judement has made the followine observations :-
"6. In my considered view, to bring an offence within the definition of "cognizable offence" under Section 2(c) of the Code, the offence by itself should be such for which the offender can be arrested without a warrant of arrest. If for commission of such offence under certain circumstances the police is given the power to arrest without warrant that would not make the offence cognizable. In that view of the matter and in view of the punishment provided for the offence under Section 33A of the Act it is not a "cognizable offence" under the First Sch. of the Code nor has the offence been made a cognizable one under the Act. The only power that has been given under the Act is that when it is committed under certain circumstances, the police has a right to arrest without warrant. The purpose for which such a power has been given to a police officer is also patent. When a person is found in possession of anything within the meaning of Section 33A of the Act on a street or public place, by a police officer, it will be ridiculous to suggest that the police officer will have to rush to a Magistrate to obtain a warrant for apprehending him. It must, therefore, be held that notwithstanding the power of the police officer to arrest without warrant, a person committing an offence under Section 33A of the Act, in exercise of the powers conferred by Section 43(1), the offence is not a cognizable one.
7. The next point to be considered is whether the learned Magistrate was justified in holding that the entire proceeding was bad in law due to non-compliance of Section 155 of the Code. This finding of the learned Magistrate is entirely wrong as it is based on the assumed premises that the offence that was being investigated by the police was one under Section 33A of the Act. The first report of the police dated July 7, 1974, which was submitted before the Magistrate at the time of producing the accused, indicates that the police officer arrested the accused under Section 41 of the Code for an offence under Section 411 of the I.P.C. as he had a reasonable suspicion that the bundles of human bones were stolen. The arrest of the accused, therefore, was not under Section 43(1) of the Act for an offence under Section 33A of the Act. Section 41(d) of the Code empowers a police officer to arrest any person, without a warrant and without any order from a Magistrate in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing. Section 157 of the Code provides that if from information received or otherwise an officer-in-charge of a Police Station has reason to suspect the commission of an offence, which he is empowered under Section 156 to investigate, he can investigate into the same in the manner indicated thereunder. Admittedly. Section 411 of the I.P.C. is a cognizable offence, and as such, if the officer-in-charge had reasons to suspect from information received or otherwise, the commission of such an offence, he was entitled to investigate into the same aaa/-::: Uploaded on - 11/01/2022 ::: Downloaded on - 24/04/2022 12:35:54 :::
36 cran 3572.2019+1654.2020.odt under Section 157 of the Code and if, such investigation ultimately disclosed commission of a non-cognizable offence, then the report that would be submitted by him shall be deemed to be a complaint under the Explanation to Section 2(d) of the Code, which defines "complaint.
31. In a case of Avinash Mukhedkar Vs. The State of Maharashtra reported in 1983 (2) BomCR 791, relied upon by the learned APP for the State in Criminal application No.1654 of 2020, the learned Sinele Judee of this Court in the identical facts of the case, in paraeraph no.6 of the Judement has made the followine observations :-
"6. In my considered view, to brine an offence within the defnition of "coenizable offence" under Section 2(c) of the Code, the offence by itself should be such for which the offender can be arrested without a warrant of arrest. If for commission of such offence under certain circumstances the police is eiven the power to arrest without warrant that would not make the offence coenizable. In that view of the matter and in view of the punishment provided for the offence under Section 33A of the Act it is not a "coenizable offence" under the First Sch. of the Code nor has the offence been made a coenizable one under the Act. The only power that has been eiven under the Act is that when it is committed under certain circumstances, the police has a rieht to arrest without warrant. The purpose for which such a power has been eiven to a police offcer is also patent. When a person is found in possession of anythine within the meanine of Section 33A of the Act on street or public place, by aaa/-::: Uploaded on - 11/01/2022 ::: Downloaded on - 24/04/2022 12:35:54 :::
37 cran 3572.2019+1654.2020.odt a police offcer it will be ridiculous to sueeest that the police offcer will have to rush to a Maeistrate to obtain a warrant for apprehendine him. It must, therefore, be held that notwithstandine the power of the police offcer to arrest without warrant, a person committine an offence under Section 33A of the Act, in exercise of the powers conferred by Section 43(1), the offence is not a coenizable one."
32. In a case Pankaj s/o. Dnyaneshwar Nighot Vs. State of Maharashtra, in Criminal Application No.1157 of 2021, relied upon by the learned counsel for the applicants in criminal application No.3572 of 2019, the Division Bench of this Court Bench at Naepur has dealt with the similar issue. In paraeraph no.21 of the Judement has made the followine observations :-
"21. Since in this case, the prosecution cannot proceed under section 188 of IPC, what will remain is only prosecution under 135 of the Maharashtra Police Act. Havine reeard to the provisions of Part-II of First Schedule of Cr.P.C., the offense under Section 135 will be non-coenizable since the maximum penalty prescribed for them is not to exceed imprisonment of one year. Therefore, neither the police nor the Maeistrate based on police report will have jurisdiction to take coenizance of a non-coenizable offense. In such a situation, relief insofar as it concerns charees under Section 135 of the Maharashtra Police Act also deserves to be eranted in this matter."
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33. In view of the discussion above and in terms of the observations made by this Court in the various cases as cited above, the First Information Report and the Criminal Proceedines are liable to be quuashed in both the criminal applications. Hence, followine order.
ORDER i. Criminal application No.3572 of 2019 (Sunilkumar s/o Raosaheb Hake and others Vs. The State of Maharashtra and another) is hereby allowed in terms of prayer clause "BB". ii. Criminal application No.1654 of 2020 (Chetan s/o Chandrakant Karade Vs. The State of Maharashtra and another) is hereby allowed in terms of prayer clause "B".
iii. Both the Criminal applications accordinely disposed off.
( SHRIKANT D. KULKARNI, J. ) ( V.K. JADHAV, J. ) ...
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