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2019 Supreme(Bom) 2129
IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT AURANGABAD BENCH
T.V. Nalawade, K.K. Sonawane, JJ.
Narendra Parshuram Patil - Appellant
Versus
State Of Maharashtra - Respondent
Criminal Writ Petition No. 1545 of 2018
Decided On : 24-07-2019
Suresh M. Kulkarni, Adv., Umesh A. Bhadgaonkar, Adv., M.M. Nerlikar, Adv.
Legislation needs to be in place for putting restrictions on fundamental rights, and authorities should be held liable for actions involving breach of fundamental rights.
Headnote:
Compensation - Fundamental Rights - Maharashtra Police Act, section 59, Code of Criminal Procedure, section 144(2)
Fact of the Case:
The petitioners, social workers, were prevented from entering their native place due to an order issued under section 144(2) of the Code of Criminal Procedure. They sought compensation for the breach of their fundamental rights.
Finding of the Court:
The court found that the order preventing the petitioners from entering their native place was illegal and violated their fundamental rights under Article 19 and Article 21 of the Constitution of India. The court relied on previous cases to support its decision.
Issues: Violation of fundamental rights, legality of the order under section 144(2) of the Code of Criminal Procedure, entitlement to compensation
Ratio Decidendi: The court held that the order preventing the petitioners from entering their native place was not supported by the legal provisions of section 144(2) and the Maharashtra Police Act. It emphasized the need for legislation to impose restrictions on fundamental rights and awarded compensation to the petitioners.
Final Decision: The petition was allowed, and each petitioner was awarded compensation of Rs.10,000/- to be paid by the respondents, with the State having the liberty to recover the amount from respondent No.5.
JUDGMENT
T.V. Nalawade, J. -Rule. Rule made returnable forthwith. By consent heard both sides for final disposal.
2. The proceeding is filed for the relief of compensation in respect of action of the respondents by which the petitioners were prevented from entering their native place viz. Nandurbar city for the period 16-9-2018 to 23-9-2018.
3. It is the case of the petitioners that they are social workers and due to their activities, the respondents, particularly the police officers, have developed grudge against them. It is contended that as against petitioner No.1, out of that grudge, externment proceeding was started under section 59 of the Maharashtra Police Act in the year 2017 but after considering the explanation given by petitioner No.1, the Sub Divisional Magistrate, authority, dropped the said proceeding. It is contended that by citing the same reasons order was issued by the Sub Divisional Magistrate Nandurbar on 15-9-2018 under section 144(2) of the Code of Criminal Procedure and the petitioners were prevented from entering Nandurbar city for the aforesaid period. It is contended that the said order was challenged by petitioner No.1 by filing revision in Sessions Court and the Sessions Court set aside the order on 21-9-2018. It is contended that as the order remained in force for some period and the petitioners were prevented from entering Nandurbar city, there was breach of fundamental rights of the petitioners and they are entitled to get compensation.
4. Copy of the order made by the learned Sub Divisional Magistrate Nandurbar dated 15-9-2018 is on record. The order is shown to be made under section 144(2) of the Code of Criminal Procedure. Following reasons are given for making such order.
(i) Some crimes are registered against the petitioners showing that there was breach of peace due to the activities of the petitioners. Crimes punishable under sections 395, 307, 353, 188 of Indian Penal Code were registered (two in number) in the year 2015 and 2017.
(ii) As there was Ganesh festival during the period 13-9-2018 and 23-9-2018 and during the same period persons of Muslim community were to celebrate Moharrum festival, there was possibility of continuation of similar activities by the petitioners and for that reason, ex-parte order was required to be issued.
5. The aforesaid order shows that no show cause notice was issued, no explanation was taken and the order was made which was to be executed immediately as the period was to start from 16-9-2018 when the order was dated 15-9-2018. It appears that publicity was also given to that order by publishing the news in the news paper.
6. Copy of the order made by the Sessions Court shows that the aforesaid order came to be set aside by holding that the order was illegal and it was not proper on the part of the authority to consider the same reasons which were given in the proposal of externment. The externment order was not passed on those grounds but the order came to be passed under section 144(2) of the code of criminal Procedure.
7. The provision of section 144(2) of the Code of Criminal Procedure runs as under.
"144. Power to issue order in urgent cases of nuisance or apprehended danger.--
(1) In cases where, in the opinion of a District Magistrate, a Sub-Divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating 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 management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a distur
