Rajasthan High Court - Jodhpur
Haris Chand Roat vs State on 16 October, 2020
Author: Devendra Kachhawaha
Bench: Devendra Kachhawaha
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
..
(1) S.B. Criminal Misc. (Pet.) No. 3213/2020
1. Haris Chand Roat S/o Shri Punji Lal, Aged About 38 Years, Village Dolka Sansarpur, Simalwara, District Dungerpur, Rajasthan 314404 Presently Posted As Male Nurse I Phc Gumarpur, District Dungarpur.
2. Sita Ram S/o Ramdev Damor Ji, Aged About 46 Years, Posted As Male Nurse Ii Phc Pohri Khatura, District Dungarpur.
3. Menka Damor W/o Manoj Damor, Aged About 40 Years, Teacher Government Senior Secondary School Simalwara, District Dungarpur.
----Petitioners Versus
1. State of Rajasthan through PP.
2. Chandmal Singariya S/o Panna Lal Singariya, Aged About 50 Years, Beawar District Ajmer Presently Posted As Sho Police Station Sadar, District Dungarpur, Rajasthan.
----Respondents ...
Connected With (2) S.B. Criminal Writ Petition No. 429/2020 Bhartiya Tribal Party, Rajasthan Office Address Pal Deval, Goghara Fala, District Dungarpur, Rajasthan Through Authorized Representative Shri Suresh Roat S/o Sh. Jeevan Lal Roat, Aged About 32 Years, R/o Khushal Magri, District Dungarpur, Rajasthan.
----Petitioner
Versus
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1. State, Through Secretary, Department Of Home Affairs, Government Of Rajasthan, Jaipur.
2. Superintendent Of Police, Dungarpur.
3. Superintendent Of Police, Udaipur.
4. Station House Officer, P.S. Bichhiwada, District Dungarpur.
5. Station House Officer, P.S. Sadar, District Dungarpur.
6. Station House Officer, Police Station Dowada, District Dungarpur.
7. Station House Officer, Police Station Kherwada, District Udaipur.
----Respondents ...
(3) S.B. Criminal Writ Petition No. 430/2020 Bhanwar Lal Parmar S/o Shri Shankar Lal, Aged About 46 Years, B/c Bhil , R/o Village Bedsa , Tehsil Simlawada, Distt. Dungarpur
----Petitioner Versus
1. State of Rajasthan through PP
2. Superintendent Of Police, Dungarpur
3. Station House Officer, P.s. Bicchiwada , Distt. Dungarpur
4. Tej Singh Chauhan S/o Sardar Singh, At Present Assistant Sub Inspector P.s. Bicchiwada , Distt. Dungarpur
5. Chandmal Singariya, Police Inspector , P.s. Sadar , Distt.
Dungarpur
----Respondents ...
(4) S.B. Criminal Writ Petition No. 431/2020
1. Pramod Nanoma S/o Hari Narayan Nanoma, Aged About 37 Years, R/o Panchali, Post Punali, Teh. And Dist. Dungarpur.
2. Prem Kumar Parmar S/o Daya Lal Parmar, Aged About 42 Years, R/o Nadela Punali Teh. and Dist. Dungarpur. (Downloaded on 16/10/2020 at 08:50:44 PM)
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3. Hari Prasad S/o Ram Ji Parmar, Aged About 27 Years, R/o Ward No. 15, Panchali, Post Punali Teh. And Dist. Dungarpur.
4. Harish Chand Baranda S/o Jevat Ram Baranda, Aged About 40 Years, R/o Village Shishod, Tehsil And District Dungarpur.
5. Vikram Dhua S/o Heera Lal, Aged About 45 Years, R/o Bijuda, Panchayat Samiti Dhotari, Dist. Dungarpur.
6. Arjun Lal Parmar S/o Gokal Ji Parmar, Aged About 52 Years, R/o 3/220, Shiva Ji Nagar, Dungarpur.
7. Manoj Parmar S/o Arjun Lal Parmar, Aged About 37 Years, R/o Kol Khanda Tehsil And District Dungarpur.
8. Ramesh Chand Roat S/o Nathu Ji, Aged About 47 Years, R/o Ward No. 2 Samota, Namdo Ki Pal Dungarpur.
9. Kanti Lal Asoda S/o Lalu Ji Asoda, Aged About 42 Years, R/o Goginagad Banjariya, Kherwada, District Udaipur.
10. Rajesh Meena S/o Arvind Kumar Meena, Aged About 38 Years, R/o Ward No. 11, Koteda Fala, Sakarashi, Teh. Simalwara, Dist. Dungarpur.
11. Babulal Tabyad S/o Jivaji Tabyad, Aged About 56 Years, R/o Holi Fala Village Modar, Tehsil Bichhiwara, Dist.
Dungarpur. ----Petitioners
Versus
1. State of Rajasthan through PP
2. Superintendent Of Police, Dungarpur.
3. Station House Officer, P.s. Bichhiwada, District Dungarpur.
4. Tej Singh Chauhan S/o Sardar Singh, At Present Assistant Sub Inspector Police Station Bicchiwada, District Dungarpur.
5. Chandmal Singariya Police Inspector, Police Station Sadar, District Dungarpur.
----Respondents
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(5) S.B. Criminal Misc. (Pet.) No. 3212/2020.
1. Dr. Deepak Ghogra S/o Vela Ram Ghogra, Aged About 40 Years, Presently Posted As Doctor Haridev Joshi General Hospital, District Dungarpur, Rajasthan.
2. Surendra Kumar Varhat S/o Ramajee, Aged About 39 Years, Ward No. 7 V/p Barothi Mahal Fala Bichhiwara, District Dungerpur, Rajasthan 314801 Presently Posted Teacher Government Senior Secondary School Jhinjhwa, District Dungarpur.
3. Pankaj Dhuha S/o Shri Manni Lal Dhuha, Aged About 27 Years, Presently Posted Teacher Government Primary School Borka Pani Tehsil Bichhiwara, District Dungarpur.
----Petitioners Versus
1. State of Rajasthan through PP
2. Chandmal Singariya S/o Panna Lal Singariya, Aged About 50 Years, Beawar, District Ajmer Presently Posted As Sho Police Station Sadar District Dungarpur, Rajasthan.
----Respondents ...
(6) S.B. Criminal Misc. (Pet.) No. 3295/2020. Banwari Lal Meena S/o Sh. Ramavtar Meena, Aged About 31 Years, R/o Bharmal-Ka-Pura, Santha, District Dausa (Raj.)., Presently Working As Assistant Technician, Jaipur Discom, Bandikui, District Dausa (Raj.).
----Petitioner Versus
1. State of Rajasthan through PP
2. Mukesh S/o Onkarlal, Aged About 38 Years, R/o Bhujiyakhedi, Tehsil Nimbahera, Dist. Chittorgarh (Raj.).
----Respondents ...
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(5 of 14) [CRLMP-3213/2020] (7) S.B. Criminal Misc. (Pet.) No. 3371/2020. Nirmala Jiva Baranda W/o Chandra Kant, Aged About 34 Years, V/p Unity, District Dungarpur, Rajasthan.
----Petitioner Versus
1. State of Rajasthan through PP
2. Chandmal Singariya S/o Panna Lal Singariya, Aged About 50 Years, Beawar, District Ajmer Presently Posted As Sho Police Station Sadar, District Dungarpur, Rajasthan.
----Respondents For Petitioner(s) : Mr. Moti Singh through VC.
Mr. Ripudaman Singh through VC.
Mr. Mukesh Kumar Meena through VC.
Mr. C.S. Kotwani, for the complainant in CRLW No. 430/2020 through VC.
For Respondent(s) : Mr. Farzand Ali, GA-cum-AAG with Mr. Abhishek Purohit, Assistant.
Mr. Mohammed Javed Gouri, PP.
Mr. Mahipal Bishnoi, PP.
Mr. Mukhtiyar Khan, PP.
Mr. Lakhman Rai, Additional Superintendent of Police, Udaipur.
HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA Order 16/10/2020 Taking into consideration the rise in COVID-19 cases, specifically at Jodhpur and Jaipur, the functioning of Rajasthan High Court, Jodhpur shall be only through video conferencing.
Heard learned counsel for the petitioners as well as learned counsel for the applicant appearing through video calling and the learned Government Advocate-cum-Additional Advocate General (Downloaded on 16/10/2020 at 08:50:44 PM) (6 of 14) [CRLMP-3213/2020] assisted by Mr. Purohit and learned Public Prosecutors, all present- in-person, at a very great length. Perused the material available on record.
The concerned Investigating Officer is present-in-person before the Court.
S.B. Criminal Writ Petition No. 429/2020:
Learned counsel Mr. Moti Singh appearing through video calling stated that in this case, total 36 FIRs have been registered; that the petitioner is a political party having it registered offices at various places to fight the elections at various forums; that the petitioner party is conducting so many political activities; that the petitioner is having two MLAs; that more than 1000 workers of the petitioner's political party have been implicated as accused in various FIRs and many workers are repeatedly implicated in more than one FIR. Learned counsel want assurance from the State Government regarding fair and impartial investigation and stated that as per the prayer clause, appropriate relief(s) may kindly be granted in favour of the petitioner.
In reply, so far as prayer clause (3) is concerned, learned Additional Advocate General appearing on behalf of the respondents- State of Rajasthan, while submitting a copy of the communication No. 9328-30 dated 15.10.2020, stated that a Special Investigating Team (SIT) having 14 persons has been constituted by the State Government to probe the incident (Downloaded on 16/10/2020 at 08:50:44 PM) (7 of 14) [CRLMP-3213/2020] occurred at the Districts of Dungarpur and Udaipur. Learned Additional Advocate General stated that the SIT has been headed by the Officer in the rank of Additional Superintendent of Police and to assist him, the concerned Deputy Superintendents, SHOs, Inspectors, Sub-Inspectors, Head Constables and the Constables of the Udaipur District and Dungarpur Districts are deputed in the SIT. Learned Additional Advocate General further stated that the concerned Inspector General of Police and Deputy Inspector General of Police are directed to assist the SIT in the entire exercise and the entire exercise of investigation is monitored by the Principal Secretary, Department of Home, therefore, in this regard, no more directions are required.
So far as prayer clause (1) is concerned, the learned Additional Advocate General principally agree and assures the Court, that no person can be arrested without availability of sufficient and substantial evidence against him. The learned Additional Advocate General further stated that the petitioner in the present case has no locus-standi in the matter, as there is no allegation against the petitioner party and it is nowhere stated that the agitation had been conducted and organized by the petitioner party or by its officials, therefore, as per the judgment passed by Hon'ble the Supreme Court, the petitioner can file Public Interest Litigation before the appropriate forum as before this Single Bench, the relief sought by the petitioner cannot be granted.
S.B. Criminal Writ Petition No. 430/2020;
S.B. Criminal Writ Petition No. 431/2020;
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(8 of 14) [CRLMP-3213/2020] So far as, S.B. Criminal Writ Petition Nos. 430/2020 and 431/2020 are concerned, learned counsel for the petitioners stated that in one petition, 11 petitioners are there and in another, the same has been preferred on behalf of one individual; that all the petitioners are Government Servants working in the Department of Education. Learned counsel further stated that the petitioners are ready to appear before the concerned Investigating Officer and also ready to join and cooperate in the investigation, therefore, both these petitions may kindly be kept pending and let the learned Additional Advocate General may kindly be directed to produce the requisite detailed report in regard to the documents submitted by the petitioners before the concerned Investigating Officer; and the petitioners may not be arrested till the next date of hearing and without any further orders of this Court. S.B. Criminal Misc. (Pet.) No. 3212/2020;
So far as Criminal Misc. Petition No. 3212/2020 is concerned, learned counsel for the petitioner stated that the petitioner Dr. Deepak Ghogra is a Doctor by profession; that his wife had suffering from breast cancer and she was admitted in the hospital at Udaipur; that the petitioner was at Udaipur to look-after his ailed wife and, therefore, he was not present at the place of occurrence.
S.B. Criminal Misc. (Pet.) No. 3295/2020;
S.B. Criminal Misc. (Pet.) No. 3371/2020;
So far as these two writ petitions are concerned, learned counsel for the petitioners stated all the petitioners are the Government Servants and further so far as the petitioners of S.B.Criminal Misc. Petition No. 3213/2020, listed at serial number (Downloaded on 16/10/2020 at 08:50:44 PM) (9 of 14) [CRLMP-3213/2020] 37 is concerned, some of the petitioners are the Nursing Staff discharging their duties at the relevant hospitals; that they also requested that they are ready to appear before the concerned Investigating Officer along with the necessary documentary evidence and they are also ready to join and cooperate in the investigation.
The learned Government Advocate-cum-Additional Advocate General also stated that the Principal Secretary (Home) is also assigned the duty of supervising the whole exercise conducted by the SIT; that only two or three FIRs have been filed by the State Government and the remaining FIRs have been filed, either by the victims or by the private persons, facing problems during the agitation. Learned Government Advocate-cum-Additional Advocate General further stated that the every citizen has right to speedy trial vis-a-vis the shop keepers and the vehicle owners, all having their right for speedy justice. The learned Government Advocate- cum-Additional Advocate General also stated I am ready to assure the Court that no person can be arrested without availability of sufficient or substantial evidence against him.
At this juncture, learned counsel Mr. Moti Singh appearing on behalf of the petitioners in S.B. Criminal Writ Petition No. 429/2020 (Bhartiya Tribal Party Vs. State of Rajasthan) requested the Court that the Registry may be directed to treat this petition as Pubic Interest Litigation or this matter may be referred to the Division Bench of this Court, where he could file necessary application for requisite amendments. (Downloaded on 16/10/2020 at 08:50:44 PM)
(10 of 14) [CRLMP-3213/2020] Learned counsel Mr. C.S. Kotwani appearing on behalf of the complainant in the SB Criminal Writ Petition No. 430/2020 (Bhanwar Lal Parmar Vs. State of Rajasthan) stated that he also supported the arguments advanced on behalf of the State of Rajasthan by the learned Government Advocate-cum-Additional Advocate General Mr. Farzand Ali.
After having given a thoughtful consideration to the rival submissions and after having perused the material available on record, so far as SB Criminal Writ Petition No. 429/2020 (Bhartiya Tribal Party Vs. State of Rajasthan) is concerned, I am of the opinion that instead of referring this petition by this Bench to the Division Bench of this Court, it is appropriate that the petitioner be directed to file fresh application before the appropriate forum with all necessary amendments and with all necessary documents and, therefore, this petition deserves to be dismissed as not maintainable.
As per the judgment rendered by Hon'ble the Supreme Court in the case of Amit Sahni Vs. Commissioner of Police & Ors.(Civil Appeal No. 3282/2020, decided on 07.10.2020), the practice of adopting the public places has been deprecated. In this judgment, Hon'ble the Supreme Court has held as under:-
"17. However, while appreciating the existence of the right to peaceful protest against a legislation (keeping in mind the words of Pulitzer Prize winner, Walter Lippmann, who said "In a democracy, the opposition is (Downloaded on 16/10/2020 at 08:50:44 PM) (11 of 14) [CRLMP-3213/2020] not only tolerated as constitutional, but must be maintained because it is indispensable"), we have to make it unequivocally clear that public ways and public spaces cannot be occupied in such a manner and that too indefinitely. Democracy and dissent go hand in hand, but then the demonstrations expressing dissent have to be in designated places alone. The present case was not even one of protests taking place in an undesignated area, but was a blockage of a public way which caused grave inconvenience to commuters. We cannot accept the plea of the applicants that an indeterminable number of people can assemble whenever they choose to protest. Justice K.K. Mathew in the Himat Lal case (supra) had eloquently observed that "Streets and public parks exist primarily for other purposes and the social interest promoted by untrammeled exercise of freedom of utterance and assembly in public street must yield to social interest which prohibition and regulation of speech are designed to protect. But there is a constitutional difference between reasonable regulation and arbitrary exclusion."
18. Furthermore, we live in the age of technology and the internet where social movements around the world have swiftly integrated digital connectivity into their toolkit; be it for organising, publicity or effective communication. Technology, however, in a near (Downloaded on 16/10/2020 at 08:50:44 PM) (12 of 14) [CRLMP-3213/2020] paradoxical manner, works to both empower digitally fuelled movements and at the same time, contributes to their apparent weaknesses. The ability to scale up quickly, for example, using digital infrastructure has empowered movements to embrace their often- leaderless aspirations and evade usual restrictions of censorship; however, the flip side to this is that social media channels are often fraught with danger and can lead to the creation of highly polarised environments, which often see parallel conversations running with no constructive outcome evident. Both these scenarios were witnessed in Shaheen Bagh, which started out as a protest against the Citizenship Amendment Act, gained momentum across cities to become a movement of solidarity for the women and their cause, but came with its fair share of chinks - as has been opined by the interlocutors and caused inconvenience of commuters.
19. We have, thus, no hesitation in concluding that such kind of occupation of public ways, whether at the site in question or anywhere else for protests is not acceptable and the administration ought to take action to keep the areas clear of encroachments or obstructions.
20. We are also of the view that the High Court should have monitored the matter rather than disposing of the (Downloaded on 16/10/2020 at 08:50:44 PM) (13 of 14) [CRLMP-3213/2020] Writ Petition and creating a fluid situation. No doubt, it is the responsibility of the respondent authorities to take suitable action, but then such suitable action should produce results. In what manner the administration should act is their responsibility and they should not hide behind the court orders or seek support therefrom for carrying out their administrative functions. The courts adjudicate the legality of the actions and are not meant to give shoulder to the administration to fire their guns from. Unfortunately, despite a lapse of a considerable period of time, there was neither any negotiations nor any action by the administration, thus warranting our intervention.
21. We only hope that such a situation does not arise in the future and protests are subject to the legal position as enunciated above, with some sympathy and dialogue, but are not permitted to get out of hand." Accordingly and with the observations foregoing, SB Criminal Writ Petition No. 429/2020 (Bhartiya Tribal Party Vs. State of Rajasthan) is dismissed, as not maintainable.
So far as, the remaining petitions are concerned, the prayer made by the learned counsel for the petitioners is accepted in this manner, that all the petitioners are directed to appear before the Investigating Officer with all necessary documents and join & cooperate in the investigation within a period of seven (07) days. (Downloaded on 16/10/2020 at 08:50:44 PM)
(14 of 14) [CRLMP-3213/2020] Since the petitioners are the Government Servants and as per their statement, they are discharging their duties at their respective place of posting, therefore, looking to this fact, it is directed that all the petitioners, who are Government Servants, may appear before the concerned Investigating Officer and join & cooperate in the investigation; and further as per the assurance given by the learned Government Advocate-cum-Additional Advocate General, if the investigating agency found any incriminating material against any of the petitioners, then and then only, they may be arrested.
It is made clear that on finding sufficient or substantial evidence against any of the petitioners, the State shall ensure issuance of show cause notice giving 10 days time to the petitioners before effecting their arrest.
As a result of the discussions aforesaid, except S.B. Criminal Writ Petition No. 429/2020 (Bhartiya Tribal Party Vs. State of Rajasthan), all the remaining petitions stand disposed of.
The stay applications also stand disposed of accordingly.
(DEVENDRA KACHHAWAHA),J 37 to 43-Mohan/-
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