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Judgment
D.G. Deshpande, J.
During all these years right from 1995, whenever the Petitioner was externed u/s 144 of the said Code, it cannot be said that there was any emergency because the dates of elections, whether Assembly, Parliamentary or Brihan Mumbai, were always notified in advance so also the Ganapati Festival is made known to the public well in advance, and it was, therefore, necessary for the Respondents to give notice to the petitioner for being heard in the matter.
Heard Mr. Mohite, the learned counsel for the Petitioner and the learned A.P.P., for the State.
It is the grievance of the Petitioner that the provisions of Section 144 of the Criminal Procedure Code are being misused by the Respondents against him only because the Petitioner was facing four criminal cases, and on that basis, every year, right from 1995, the Petitioner was being externed either on account of Assembly Election or Parliamentary Election or the Brihan Mumbai Municipal Elections or on account of festivals like Ganapati Festival, etc. for a period of 3 to 5 days from the area of Pydhonie Police Station, Pydhonie Division, Mumbai.
The learned counsel for the Petitioner contended that the police have powers u/s 144 of the Criminal Procedure Code for passing suitable orders of the above said nature. But his grievances was that even though none of the prosecutions, which the petitioner was facing, were in respect of any unlawful act or offence committed by the petitioner, those four cases were being used as weapons to extern the Petitioner from the area of his place of residence. He further made a grievance that in all these cases of externment of the petitioner u/s 144 of the Criminal Procedure Code, the Respondents were knowing advance dates of elections and date of Ganapati Festival and, therefore, there was no case of emergency nature was existed. However, without giving any notice or an opportunity to the Petitioner, the orders were passed externing him for some time during those occasions.
The learned A.P.P. for the State submitted that Sub-section 2 of Section 144 of the Criminal Procedure Code, provides powers to the police to pass ex-parte orders in case of emergency. There is no dispute about the powers of the Police which provide under Sub-section 2 of Section 144 of the said Code. However, the question is whether Sub-section 2 of Section 144 of the said Code can be resorted to for passing an order in case there is no emergency.
The objections raised by the Petitioner appear to be sound and legal. During all these years right from 1995, whenever the Petitioner was externed u/s 144 of the said Code, it cannot be said that there was any emergency because the dates of elections, whether Assembly, Parliamentary or Brihan Mumbai, were always notified in advance so also the Ganapati Festival is made to the public well in advance, and it was, therefore, necessary for the Respondents to give notice to the petitioner for being heard in the matter.
What has been done in the past cannot be considered and, therefore, the learned counsel for the Petitioner contended that the directions to the Respondents for future would be sufficient to meet the ends of justice. In view of this, the Petition is allowed. Rule is made absolute accordingly. The Respondents are directed to give notice to the Petitioner in case they intend to take action u/s 144 of the said Code particularly in the background of any elections or any festivals. Needless to say that the notice to be given to the Petitioner should be a sufficient notice well in advance, duly and properly served.
Copy of this order to be sent to the concerned police station duly authenticated.