MAHENDRA JAYPRAKASH JAISWAL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The petitioners are before this Court with a principal prayer, which is prayer clause (a) and the same reads thus :

(2.) The matter was listed before this Court on 4/4/2022. On that day, we heard learned counsel for the petitioners at length. Mr.Pradeep Patil, learned counsel for respondent no.2 was not present in this Court. In order to give one more and last opportunity to respondent no.2, the petition was adjourned today and learned counsel for the petitioners had submitted that he would forward intimation in respect of adjourned date to the counsel for respondent no.2. Accordingly, the intimation was also forwarded to counsel appearing for respondent no.2. Today, learned counsel Mr. Nikhil Patil holding for learned counsel Mr. Pradeep Patil submitted that due to personal difficulty, learned counsel for respondent no.2 who is appearing for the officer of Kalyan Dombivli Municipal Corporation (hereinafter referred as "KDMC" for the sake of brevity) is not present before this Court. Learned counsel for the petitioners submitted that matter was heard yesterday at length and only to grant an opportunity to the counsel appearing for respondent no.2, petition was adjourned today. In this situation, we are not inclined to wait for respondent no.2.

(3.) Considering the submission of learned counsel for the petitioners it would be useful to refer the certain materials placed on record. The perusal of copy of report lodged at instance of respondent no.2, placed on record at page 181, shows that respondent no.2 is an employee of KDMC and, at the relevant time, he was attached to department of removal of encroachment. The perusal further shows that on 11/5/2018, a notice was issued to three unauthorised holder of shop-lets to vacate their premises within 24 hours. In pursuant to the notice, on 14/5/2018, respondent no.2 along with Ward officer Shri Parshuram Kumavat and some police staff approached the area namely Swami Vivekanand Road, Opposite Swami Samarth Math and these three shop owners namely Shree Shankar Sweet Mart, V.K. Electronics and Rakesh Grain Stores/Ashapura Stores were informed that pursuant to notice, they are required to vacate the premises immediately. At that point of time, the petitioners opposed the action. Petitioner no.1 uttered the words that "first kill us and then evict the shop-lets". Petitioner no.1 then stated that he is a patient of heart ailment as well as blood pressure, and if any untoward incident takes place, the Corporation employees and other members would be responsible. In spite of repeated requests made to the petitioners, the petitioners paid no heed and refused to either come out of the shops or vacate the shops. As the petitioners resisted to vacate the shop-lets, the police staff forcibly removed these petitioners from the shop-lets and assisted the Corporation staff and the process of vacating the shop-lets was given effect to. Accordingly, a report was lodged alleging that the petitioners deterred respondent no.2 and other staff from discharging their duties. The offence punishable under Sec. 353 read with 34 of Indian Penal Code was attracted against the petitioners.