Bombay High Court
Vijay K. Khatarkar, Sr. Divisional ... vs Manish Nanabhau Phatangare, J.M.F.C on 11 July, 2018
Author: M.G. Giratkar
Bench: P. N. Deshmukh, M. G. Giratkar
1 jg.cri.wp 333.11.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
Criminal Writ Petition No. 333 of 2011
(1) Vijay K. Khatarkar,
Aged about 43 years, Occ. Service,
Senior Divisional Security Commissioner,
Central Railway, Nagpur.
(2) Sudeep S/o Shailendra Kumar Shrivastava,
Aged 34 years, Occ : Service,
Deputy Chief Signal and
Telecommunication Engineer/Construction,
Nagpur Division, Central Railway, Nagpur.
(3) Satishkumar Shriram Jaiswal,
Aged about 44 years, Occ. Service,
Assistant Divisional Signal and
Telecommunication Engineer Construction,
Central Railway, Nagpur.
(4) Nepalchand s/o Murlidhar Jambhulkar,
Aged about 46 years, Senior Section
Engineer (Signal) Construction,
Central Railway, Nagpur. ..... Petitioners
// Versus //
Manish Nanabhau Phatangare,
Aged major, Occ. Service,
Judicial Magistrate, First Class,
Railway Court, Nagpur. ..... Respondent
Ms. Ankita Sarkar, Advocate h/f Shri S. V. Sirpurkar, Advocate for the
petitioners
Shri S. J. Kadu, Additional Public Prosecutor for the State/respondent
CORAM : P. N. DESHMUKH AND
M. G. GIRATKAR, JJ.
Date : 11/07/2018.
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2 jg.cri.wp 333.11.odt
Judgment (Per : M.G. Giratkar, J.)
The petitioners prayed to quash and set aside show cause notices issued by the respondent Railway Magistrate, Railway Court, Nagpur.
2. The petitioner no. 1 is of the rank of Director level in the Government of India. The petitioner no. 2 is of the rank of Deputy Secretary level in the Government of India. The petitioner no. 3 is gazetted officer and the petitioner no. 4 is of Senior Supervisor Rank. All these petitioners have been slapped with the show cause notices by the respondent wherein action is sought to be taken against them. However, said show cause notices are ambiguous and do not disclose which action is to be taken and under which provision of law when the petitioners are not employees of the respondent. Hence the action taken is wholly without jurisdiction and the petitioners are left with no other alternative than to invoke the jurisdiction of this Court.
3. The respondent is a Magistrate posted as Judicial Magistrate First Class, Railway Court, Nagpur. Respondent was on .....3/-
::: Uploaded on - 17/07/2018 ::: Downloaded on - 18/07/2018 00:39:43 ::: 3 jg.cri.wp 333.11.odt his personal visit to bring his sister from Railway Station, Ajni on 21-5-2011 at morning 8.30 a.m. On his personal visit to the Railway Station, the respondent conducted a check of ticket at railway platform, Ajni. While carrying out this action, the respondent confronted one Chaitram Radhe, a Group IV employee of Railways, who was standing at platform. Said employee informed that he was on duty and showed his identity card. He further told the respondent that he has been asked to go to Nagpur Route Relay Interlocking by his superior officer. In spite of this, the respondent directed the railway police personnel to register an offence against him for being without ticket on the platform.
4. Concerned railway police officer on the say of respondent enquired into the matter. During enquiry, statement of Chaitram Radhe was recorded. Said employee gave the statement wherein he specifically informed that he was on duty under the instructions of his senior officer and was asked to go to Nagpur Route Relay Interlocking. The railway police therefore did not register any offence against Shri Chaitram Radhe in accordance with the Commercial Manual Para 302, a railway staff on duty .....4/-
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5. The respondent has no authority to check the ticket himself. He can only direct the Ticket Collector/Examiner/Station Master to check ticket and register offence, if required. Statement of Shri Jambhulkar who is petitioner no. 4 was recorded who has stated that Shri Chaitram Radhe was on duty on the railway platform.
6. Non-registration of offence against Shri Chaitram Radhe enraged the respondent and he took this as his personal insult, therefore, show cause notices to petitioner nos. 1 and 2 were issued on 21-5-2011. Copies of show causes notices dated 21-5-2011 are annexed at Annexure IV and V of the petition. Show cause notices were served upon petitioner nos. 1 and 2. Perusal of shows cause notices would show that it was alleged against petitioner no. 2 that a telephone call was received from landline No. 0712-2560223 which belongs to the office of the petitioner no. 2 wherein objection was raised regarding action taken against Shri Chaitram Radhe. It was alleged that respondent's personal mobile number was given by .....5/-
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7. To avoid misunderstanding, the petitioner no. 1 filed his reply before the said Magistrate wherein he specifically clarified that he has not given number of the respondent to anybody. The petitioners have also informed the District Judge regarding this action taken is without jurisdiction by the respondent. However, in spite of accepting the said reply, the respondent passed an order directing the petitioner to remain personally present on 7-6-2011 and file an affidavit. The respondent also objected to the reply not being filed on affidavit. The respondent directed petitioner no. 2 to serve show cause notice to petitioner nos. 3 and 4. The respondent has a grudge against the petitioners, therefore, issued show cause notice on 27-5-2011.
8. All the actions taken by the respondent are wholly without any jurisdiction and without any authority of law. The petitioners have explained about the misunderstanding of the respondent by filing affidavit. All the petitioners were insulted by the respondent. In spite of this, respondent do not drop the .....6/-
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9. The petitioner no. 1 was in Mumbai for official work, therefore, he moved application for exemption. In spite of this, the respondent did not drop the proceeding, on the contrary, passed order directing the petitioner to remain personally present and file affidavit again on 15-6-2011. Now, petitioners are directed to personally remain present before the respondent without there being any offence registered against them. Show cause notice issued by the respondent to the petitioners are illegal and, therefore, liable to be quashed and set aside.
10. Heard learned counsel Ms. Ankita Sarkar appearing on behalf of learned counsel Shri S. V. Sirpurkar, for the petitioner. She has pointed out notices issued by the respondent and submitted that the respondent had no any authority to issue show cause notices to the petitioners. All the show cause notices were nothing but only to insult the petitioners. At the most, respondent could have informed to the superior officer about their conduct. At last, she prayed to allow the petition.
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11. This Court vide order dated 25-7-2011 directed the respondent to submit report as to under which provision of the Code of Criminal Procedure, said notice has been issued to the petitioner and what action he proposes to take against the petitioners. In response to the said order, the respondent submitted his report dated 1-8-2011.
12. From the perusal of the respondent's report, it is clear that he was on the railway station to receive his relatives. He checked platform ticket and found one of the employees of railway without any ticket. Therefore, he directed to register the offence. It appears from the report that he was pressurized by the superior officer on his mobile. It seems from the show cause notice dated 21-5-2011 that the respondent is using mobile number 9860480304 and on that day, he happened to be present on platform to receive his sister. One Chaitram Radhe, railway employee was found without any pass or authority to travel, checked out along with other public. Respondent received the phone call from 0712-22560223, from the officer of said employee, namely, Shrivastava objecting the action taken by the respondent. On .....8/-
::: Uploaded on - 17/07/2018 ::: Downloaded on - 18/07/2018 00:39:43 ::: 8 jg.cri.wp 333.11.odt enquiry, he came to know that his mobile number was given by another petitioner, therefore, show cause notice was issued to the petitioner. Again on 27-5-2011, show cause notice was issued. Railway Magistrate passed order on 7-6-2011 directing the petitioner to remain present in person on 15-6-2011 at 11.00 a.m. and to file affidavit.
13. From the perusal of report of the respondent and show cause notices issued to the petitioners, it is clear that the respondent himself checked the ticket at railway platform. It is pertinent to note that Railway Magistrate had no authority to check railway tickets at platform. His duty was to decide the cases on the basis of evidence. It appears from the show cause notices issued by the respondent that his ego was hurt because he was asked on his mobile phone as to how he was authorized to take action against railway employee, therefore, the respondent issued show cause notices and directed the petitioners to remain present before him.
14. It is pertinent to note that none of the petitioners are employees of the Railway Court. Railway Magistrate/respondent .....9/-
::: Uploaded on - 17/07/2018 ::: Downloaded on - 18/07/2018 00:39:43 ::: 9 jg.cri.wp 333.11.odt was not authorize to issue such notices to the petitioners. It appears that ego of Railway Magistrate was hurt and, therefore, he issued show cause notices to the Railway Officers who are having superior posts. The report of the respondent do not show under what authority, he issued show cause notices to the petitioners under the Railway Manual. As per the Railway Manual as pointed out by the petitioners, railway employee is authorized to remain present on railway platform. Chaitram Radhe is employee of Railways, therefore, it was not proper for the respondent to direct the Railway Police to register offence against Chaitram Radhe who was not having platform railway ticket. Moreover, it was not duty of Railway Magistrate to check the tickets at railway platform. All the show cause notices issued to the petitioners are without any jurisdiction of the respondent, therefore, liable to be quashed and set aside. Hence, we are inclined to allow the petition. In the result, writ petition is allowed in terms of prayer clause (i).
JUDGE JUDGE
wasnik
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