1 Cri. W.P.No. 731 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Criminal Writ Petition No.731 Of 2010 * Sangram s/o Janardhan Tupe, Age 42 years, Occupation : Legal Practitioner, R/o Sant Namdeonagar, Beed, Taluka and District Beed. .. Petitioner. Versus 1) The State of Maharashtra Through the Secretary Home Department, Maharashtra State, Mantralaya, Mumbai.32. 2) The Sub Divisional Police Officer, Beed, Taluka and District Beed. 3) The Sub Divisional Magistrate, Beed, Taluka and District Beed. 4) Mahendra s/o Uttamrao Harpalkar, Age 39 years, Occupation : Service, working as Deputy Collector, Employment Guarantee Scheme, and R.D.C. Beed, .. Respondents. -------- Shri. V.D. Salunke, Advocate for petitioner. Shri. K.G. Patil, Additional Public Prosecutor, for respondent Nos.1 to 3. -------- ::: Downloaded on - 09/06/2013 17:08:22 ::: 2 Cri. W.P.No. 731 of 2010 CORAM: NARESH H PATIL & A.V. POTDAR, JJ.
Judgment reserved on : 17th March 2011 Judgment pronounced on : 24th March 2011. JUDGMENT : (Per Naresh H Patil, J.): 1) The petitioner challenges notice dated
26-7-2010 issued by the Sub Divisional Magistrate, Beed,
under sedition 56(b) of the Bombay Police Act, 1951 (for
short, “the Act of 1951′). The notice was issued asking him
as to why he should not be externed from Districts of Beed,
Osmanabad, Jalna, Ahmednagar and Aurangabad for a
period of two years.
2) The petitioner contends that he is residing in
Beed town since last 25 years. He is a reputed Advocate
practicing in District Court Beed since last 9 years. The
petitioner submits that, his father was elected as a
Member of the State Legislative Assembly and is a social
worker. The petitioner is Chairman of Vividh Karyakari
Seva Sahakari Society, Pimpalwadi and is working as
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3 Cri. W.P.No. 731 of 2010
Secretary of Beed Zilla Rashtrawadi Congress Party. The
petitioner further contends that, respondent No.4 – Deputy
Collector (Employment Guarantee Scheme) and Resident
Deputy Collector Beed lodged a complaint against the
petitioner and pressurized police to register an offence
under sections 354, 323 of the Indian Penal Code. The
respondent No.4 is a relative of the Superintendent of
Police Beed and with the help of close relative the
respondent No.4 started pressuring respondent Nos.2 and
3 to harass the petitioner by initiating externment
proceedings. It is the petitioner’s contention that, due to
pressure of respondent No.4, without any reason,
respondent No.3 misused powers conferred under the Act
of 1951 and initiated action against the petitioner by
issuance of a show cause notice.
3) The complaint filed by the Resident Deputy
Collector reads that on 29-4-2010 at 14.30 hours
petitioner abused him and called him a thief and asked as
to why he was distributing amount in night time. It is
alleged that the petitioner had threatened him to kill
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4 Cri. W.P.No. 731 of 2010
through naxalites. The petitioner submits that the
allegations made in the complaint are totally false. No such
incident took place. The petitioner tried to settle the issue
but respondent No.4 was bent upon to harass the
petitioner. The police registered crime No.91/10 on
12-5-2010. The Summary Criminal Case Number is 1332 of
2010.
4) The petitioner’s objection is that, a show cause
notice was issued by the Sub Divisional Magistrate, Beed,
respondent No.3 herein, on 26-7-2010 under the provisions
of Section 56(b) of the Act, 1951. The petitioner filed
reply to the said show cause notice on 4-8-2010.
5) Consequent to the notice issued, respondent No.
3 filed affidavit-in-reply on 13-10-2010. Respondent No.2
filed his affidavit-in-rely on 14th October 2010. The
respondents – State authorities had alleged against the
petitioner in respect of his conduct and had referred to
criminal case registered by police.
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5 Cri. W.P.No. 731 of 2010
6) Learned counsel Shri. V.D. Salunke, appearing
for the petitioner, submitted that, respondent No.3 was not
entitled to issue show cause notice under section 56(b) of
the Act, 1951 merely on the ground of registration of one
criminal case against the petitioner. The respondents have
misused their powers in issuing the notice. The notice was
issued under pressure from respondent No.4. The notice is
not tenable and, therefore, it deserves to be quashed and
set aside.
7) The counsel further submitted that, the notice
to extern the petitioner from five districts also suffers from
non application of mind. There is no power with the
authority to issue such notice.
8) The learned Additional Public Prosecutor, Shri.
K.G. Patil, submitted that the petition is premature. It is
filed against a show cause notice to which the petitioner
had already filed reply. In case the petitioner suffers
adverse order then under the provisions of the Act of 1951
right of appeal is provided to the petitioner. The petitioner
has failed to point out that the respondent No.3 has no
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6 Cri. W.P.No. 731 of 2010
jurisdiction to issue such notice. The petitioner’s conduct
was objectionable, and therefore, the authorities had
issued notice.
9) The learned counsel Shri. V.D. Salunke, for the
petitioner, in support of his contentions, has placed
reliance on the following reported judgments.
(1) Gunwanta Gajanan Khandekar v. Sub-
Divisional Magistrate, 2008 (1) Bom.C.R.
(Cri.) 329.
(2) Vilas Siddharth Sirsat v. State of
Maharashtra, 2010(1) Bom.C.R.(Cri.37.
(3) Chandar Dayaldas Sindhi v. M.W. Chitale,
Deputy Commissioner of Police Zone II,
Kalyan, 1984(2) Bom.C.r. 682.
(4) Chhotu Siddinath Kunwar v. State of
Maharashtra, 1989 Mh.L.J. 1021.
(5) Arun Narayanrao Mande v. State of
Maharashtra, 2003 Bom.C.r. (Cri.) 24.
(6) Balu Shivling Dombe v. The Divisional
Magistrate, 1969 Cri.L.J. 1341.
10) We have perused the judgments cited supra and
the relevant provisions of the Act of 1951. We find that the
petitioner has already filed reply on 12-7-2010 to the
notice dated 1-7-2010 issued by the Sub Divisional Police
Officer to the petitioner under section 56(b) of the Act of
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7 Cri. W.P.No. 731 of 2010
1951. This petition was filed on 4-8-2010. Under the
provisions of Section 60 of the Act of 1951 the petitioner is
entitled to file appeal to the State Government in case
adverse order is passed against the petitioner. At this
stage, in the facts of the case, it would not be proper to
discuss the merits of the allegations made against each
other by the respective parties and to decide
maintainability of the show cause notice.
11) The law in respect of entertaining a writ
petition in the light of existence of alternate remedy is well
settled. The petitioner is not coming with a case that
respondent No.3, Sub Divisional Magistrate, who issued
the show cause notice, had no jurisdiction to issue said
notice. No doubt, alternate remedy is not an absolute bar,
but ordinarily writ petition should not be entertained when
there is alternate remedy.
12) In the light of the fact that there is efficacious
statutory alternate remedy available to the petitioner, we
are not inclined to entertain this writ petition. All the
issues raised by the contesting parties are kept open. We
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8 Cri. W.P.No. 731 of 2010
expect the respondents – authorities to deal with the issue
strictly in accordance with law.
13) The writ petition is dismissed. Rule is
discharged. Interim relief stands vacated.
Sd/- Sd/-
(A.V. POTDAR, J.) (NARESH H PATIL, J.)
rsl
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