BADRINATH TEJPAL BHOMAVAT Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) In this application which is filed by the one of the accused, in a case pending in the Court of Civil Judge, Junior Division and Judicial Magistrate, First Class at Kannad, under Article 226 of the Constitution of India, an interesting question about the validity of subordinate legislation vis-a-vis Article 19 (1) (a), (b) and (d) of the Constitution arises for consideration and it arises in the following manner

(2.) A criminal case which is mumbered as Summary Case No. 189 of 1979 was filod by P. S. I. Kulkarni of Kannad Police Station against 37 persons for offences under section 131 of the Bombay Police Act read with section 33 (o) of the same Act and also under section 132 of the Bombay Police Act read with Section 37 (1) of the same Act. It appears that the mention of section 132 is incorrect and this section ought to be 135 of the Bombay Police Act. The Additional District Magistrate at Aurang- abad, acting under section 37 (1) of the Bombay Police Act, had issued an order dated 20th March 1979. This order was to come in force with effect from zero hours on 31-3-1979 and was to remain in force till 24 hours of 4-4-1979. This order reads as follows :- "ORDER UNDER SECTION 37 (1) OF THE BOMBAY POLICE ACT, 1951. No. 1979/NAG/962 Office of the District Magistrate, Aurangabad, dated/20-3-1979. ORDER : ' Whereas, it has been represented to me that there is apprehension of breach of peace and public tranquillity in Aurangabad District due to activities of certain communal organisations. And, whereas, I am salied that breash of peace is apprenended promulagte order under section 37 (1) of the Bombay Police Act, 1951 (Bom. HXII of 1951) to maintain public peace and order in Aurangabad District. Now, thererorc in exercise of the powers vested in me under section 37 .(1) of the Bombay Police Act, 1951 .(Bom.-XXII. of 1951), I, G. B. Rane, Additional District Magistrate, Aurang- abad, do hereby prohibit the following acts in the Aurangabad District for preservation of public peace and public safety :

(3.) It appears that after the case was instituted, it was directed to be registered and process was directed to be issued against the accused. Accordingly, many of the accused appeared before the trial Court and they were released on bail after furnishing necessary security and after execution of the personal bonds by them. All the same, three of the accused were not at all traced and, according to the petitioner before this Court, all these three names are fictitious names and these persons are not liable to be found at any time and this has a reference to original accused Nos. 3, 5 and 20. These three accused never appeared before the trial Court at any time. The case is simply adjourned from time to time without any progress whatsoever since 6-4-1979 to 2nd February 1982. We find from the copy of the roznama of the trial Court produced at Ex. 'D' in this writ petition that not a single witness is examined by the prosecution so far in the prosecution of this case. We also find that the some of the accused were absent, warrants are directed to be issued against them and on some occasions some of them are sent to jail. In fact, it is the duty of the learned Magistrate to separate the case of the untraceable accused from those who had appeared before the trial Court and to proceed with the case in the presence of the accused who were served with the summons and who had appeared before the Court. The present petitioner before us is a Chartered Accountant working at Bombay and is either required to attend Kannad Court on each and every date or is required to make arrangement for seeking exemption from attending the Court on the dates mentioned. The petitioner accused thought that this was nothing but a harrassment, and according to the petitioner, no offence was disclosed whatsoever even with an assumption of the facts mentioned by the P. S. I. in the complaint and, therefore, this petitioner and all other accused filed a writ petition in this Court for quashing the criminal case filed against them by the P. S. I.