* Sangram vs The State Of Maharashtra on 24 March, 2011

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Bombay High Court
* Sangram vs The State Of Maharashtra on 24 March, 2011
Bench: Naresh H. Patil, A. V. Potdar
                                    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.

                                 --------




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                                    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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