Dismissed

Asaduddin Owaisi S/O Salauddin Owaisi v. the Commissioner of Police, Aurangabad and Others

Bombay HC11 Feb 2013APPLN/719/2013

Case brief

AI extract

What is this about?

This criminal application sought a stay of a prohibitory order preventing the applicant from visiting Khultabad. The High Court rejected the application, holding that the petitioners' submissions on interpreted Supreme Court judgments were inapplicable to the specific facts and gravity of the local law and order situation.

What did the court decide?

Relief in terms of prayer clauses (B) and (C) is refused; Criminal Application rejected.

Asaduddin Owaisi S/O Salauddin Owaisi… — Constitutional and Fundamental Rights | Bombay HC (2013)

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Cr.Appln./719/2013

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

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CRIMINAL APPLICATION NO. 719 OF 2013 IN CRIMINAL WRIT PETITION NO. 112 OF 2013

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ASADUDDIN OWAISI S/O SALAUDDIN OWAISI

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VERSUS THE COMMISSIONER OF POLICE, AURANGABAD AND OTHERS

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... Advocate for Applicant : Shri S.S.Kazi APP for Respondents : Shri S.K.Tambe

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... CORAM : S.B.DESHMUKH & M.T. JOSHI, JJ. Dated: February 11, 2013

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PER COURT :-

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We have heard learned counsel for the respective parties at

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length.

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Before adverting to the present application, we would like to place on record the fact about filing of Criminal Writ Petition No.112 of 2013 by the petitioner / present applicant. Said Criminal Writ Petition has been filed by the petitioner on 4.2.2013. In that Petition following are the reliefs prayed for :-

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"(A) This Criminal Writ Petition may kindly be admitted and allowed.

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(B) By issuing an appropriate writ, order or direction the impugned order passed by Respondent No.1, bearing Ow.No.S.B./Proh. Order /2013/345, dated 29.1.2013 be quashed and set aside.

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Cr.Appln./719/2013

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(C) Pending hearing and final disposal of this Writ Petition the execution, implementation and operation of the impugned order dated 29.1.2013 passed by Respondent No.1 in proceedings No. Ow.No.S.B./Proh. Order/2013-345, be stayed.

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(D) Ad-interim relief in terms of prayer clause "C" may kindly be granted.

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(E) Record and proceedings be called for.

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(F) Any other relief in favour of petitioner may kindly be granted."

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This Criminal Writ Petition was mentioned before this Court and was heard for admission on 4.2.2013. The matter was listed for admission on 8.2.2013. On that day, after hearing learned counsel for the petitioner Shri Kazi, notice was issued in the petition returnable on 20.2.2013 by this Court (Coram : S.B.Deshmukh & M.T.Joshi, JJ.). It reflects from the said order that writ petition was mentioned by Shri Kazi on 6.2.2013. On that day urgency was pointed out by learned counsel for the petitioner that the petitioner intends to visit Khultabad Taluka within the limits of Aurangabad District on 12th February, 2013. In that view of the matter, urgent circulation of 8.2.2013 was granted. Order passed by this Court on 8.2.2013 further shows that notice was issued to the respondents returnable on 20th February 2013. Learned PP accepted the

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Cr.Appln./719/2013

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notice and sought time for filing of the reply. Thus, Criminal Writ Petition No.112 of 2013 was adjourned for filing of the affidavit in reply by learned PP on 20.2.2013.

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On the background facts, which are referred in the foregoing paragraphs, present criminal application was filed on 8.2.2013. It was mentioned by Shri Kazi, learned Advocate before the Court. This Court, considering the urgency on 8.2.2013 had directed the Registry to accept the criminal application, which was tendered across the table by Shri Kazi and to register the same. Notice was issued to respondents returnable on 11.2.2013 i.e. today, considering the urgency pointed out by Shri Kazi, learned Advocate for the applicant. That is how, the present application is listed before this Court today for hearing.

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Learned APP Shri Tambe has tendered affidavit in reply on behalf of respondents. It is accepted and taken on record. It is marked Exhibit "X" for identification This affidavit in reply is sworn in by Sanjay Yadav, Commissioner of Police, Aurangabad on 11.2.2013. Shri Kazi, learned Advocate fairly concedes receipt of the copy of this affidavit.

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Shri Kazi, learned Advocate took us to the pleadings in the present application in paragraph Nos.2, 3 and 4, which we reproduce herein below:-

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Cr.Appln./719/2013

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" 2. Though, in the criminal writ petition, the applicant / petitioner has stated that the applicant is desires and willing to visit Khultabad on 10.2.2013 but as per Islamic calendar the applicant will have to visit Khultabad on 12.2.2013, as every year, the applicant is visiting Khultabad on 1st Rabiual Akhir day of Islamic calendar which fall on 12th of February, 2013.

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The applicant undertakes that, on 12th afternoon which he will reach Aurangabad by flight he will not stay at Aurangabad and will proceed towards Khultabad. The details of flight are as under:-

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On 12th February, 2013 the applicant come to Aurangabad by flight of Jet Airways, which will take on from Mumbai at 5.25 pm and will reach Aurangabad around 6.20 p.m.

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On 13th February, the applicant will leave Aurangabad by Air India flight at 441 at 5.00 p.m. for Mumbai.

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The applicant undertakes that, during the visit to Aurangabad and Khultabad by flight on 12th and 13th, the applicant will not address or hold any public meeting."

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Shri Kazi, learned Advocate invited our attention to prayers made in this application in paragraph No.10, which are as under:-

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"(A) This Criminal Application may kindly be allowed.

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(B) The applicant be permitted to arrive at Aurangabad by

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Cr.Appln./719/2013

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afternoon flight on 12.2.2013 and leave Aurangabad by evening flight of 13.2.2013 and for this period the execution and operation of the impugned order passed by respondent no.1 on 29.1.2013 be stayed.

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(C) Pending hearing and final disposal of this application, the execution and operation of impugned order dated 29.1.2013 be stayed for 12th and 13th February, 2013, both days inclusive.

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(D) Ad-interim relief in terms of prayer clause "C" may kindly be granted.

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(E) Any other relief for which the applicant is entitled.

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(F) Affidavit of applicant may kindly be dispensed with."

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Shri Kazi, learned Advocate in support of his submissions relied upon some reported judgments. He submitted that the applicant is desirous to visit Khultabad on 12.2.2013 i.e. 1st Rabiual Akhir day of Islamic Calendar. According to him, the applicant visits Khultabad every year on this day. This year, the day falls on 12.2.2013. According to Shri Kazi, learned Advocate, in these facts, prayer clause (B) may be considered and/or prayer clause (C) may be considered. Shri Kazi also points out paragraph No.4, which we have reproduced herein above, in which undertaking is given by the applicant that during the visit to Aurangabad and Khultabad, on 12.2.2013 and 13.2.2013, the applicant will not address or hold any pubic meeting.

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Cr.Appln./719/2013

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Shri Tambe, learned APP took us through the affidavit in reply filed on behalf of the respondent State. He points out paragraph No.5 of the said reply, which we, reproduced herein below:-

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"5. As already stated, I say that the situation that existed on 29.1.2013 i.e., on the date of issuance of prohibitory order has not been changed, on the contrary the communal situation has further more vitiated over the hanging of Afzal Guru and registration of crime against Praveen Togadiya for his contentious utterance related with Akbaruddin Owaisi's (MLA. AIMIM) contentious speech and high alert is being maintained in the city In case the Applicant is allowed to enter into the city, then the law and order will be adversely affected."

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Shri Tambe, learned APP further submits that the deponent in his affidavit has clearly stated that, the confidential record maintained by the Superintendent of Police (Rural), Aurangabad and Commissioner of Police, Aurangabad does not reveal that Applicant was visiting Khultabad every year on 1st Raibul Akhir day of Islamic calendar Besides, the Presidents of both the Dargas committees have informed in writing that there is no religious function on12.2.2013 at any of the Dargas of Khultabad. Shri Tambe, learned APP further submits that prayer clause (B) in the application is in the nature of final relief and he, therefore, opposes for consideration of prayer clause (B) or prayer clause (C).

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Cr.Appln./719/2013

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Shri Kazi, learned Advocate relied upon the judgment of the Honourable Supreme Court in the case of All India Anna Dravida Munnetra Kazhagam Vs. Chief Secretary, Government of Tamil Nadu and others [(2009) 5 SCC 452]. He emphasised observations of the Supreme Court made in paragraph No.18, wherein, it has been observed as under:-

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"18. Ordinarily, the High Court as well as this Court as well as this Court refrains from passing an interim order the effect of which would be ranting the main relief. But in cases where a party approaches the court without loss of time, there are no laches on its part, it is not possible to give notices to all the necessary parties and hear them because of paucity of time and in case interim order is not passed in a case like the present one, which, prima facie, in the opinion of the court is concluded by judgment of this Court, the main case would become infructuous, different considerations would arise and appropriate interim order should be passed." (emphasis supplied).

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With the assistance of Shri Kazi, learned Advocate we have gone through the facts emerging in paragraph Nos.2, 3, 4, 5 and 6 of the said judgment. It emerges from these facts that the petitioner therein had filed Writ Petition No. 31435 of 2007 before the Madras High Court on 26.9.2007, making a prayer therein for a declaration that the call given for a bandh and holding of a bandh in the State of Tamil Nadu either on 1.10.2007 or on any other date by Respondents 3 to 7, which are political parties, namely, Dravida Munnetra Kazhagam, Indian National Congress,

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Cr.Appln./719/2013

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Communist Party of India (Marxist), Communist Party of India and Pattali Makkal Katchi, were violative of Articles 19 and 21 besides the directive principles of State policy and the fundamental duties enshrined under the Constitution of India.

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According to Shri Kazi, this judgment contains the guidelines for grant of interim relief, even it is in the nature of main relief.

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Another judgment, on which Shri Kazi, learned Advocate has placed reliance is the judgment of the Supreme Court in the case of Dr. Mehmood Nayyar Azam Vs. State of Chattisgarh and Others [2012 Cri.L.J. 3934]. Shri Kazi, learned Advocate took us to paragraph No.28 of the said judgment. It is observed by the Honourable Supreme Court therein as under:-

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"28. It is apposite to note that inhuman treatment has many a facet. It fundamentally can cover such acts which have been inflicted with an intention to cause physical suffering or severe mental pain. It would also include a treatment that is inflicted that causes humiliation and compels a person to act against his will or conscience."

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Shri Kazi, learned Advocate fairly concedes that the facts in the cited judgment have been listed by the Honourable Supreme Court in paragraph Nos.2, 3 and 4. It was the case of an Ayurvedic Doctor with

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Cr.Appln./719/2013

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B.A.M.S. degree. He, while practicing in West Chirmiri Colliery, Pondi area in the State of Chhattisgarh, used to raise agitations and spread awareness against exploitation of people belonging to weaker and marginalized sections of the society. As a social activist, he ushered in immense awareness amongst the down-trodden people which causes discomfort to the people who had vested interest in the coal mine area. With the assistance of learned counsel Shri Kazi, we have gone through the relevant paragraphs of this judgment.

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Learned counsel for respective parties do not dispute that Criminal Writ Petition No.112 of 2013 is the petition principally challenging the order passed by the Commissioner of Police, Aurangabad dated 29.1.2013 and is that it is still pending consideration before this Court.

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Shri Kazi, learned Advocate in support of his submission and in response to the submission of learned APP that law and order problem is more severe, in view of the contentions raised in the affidavit in reply of respondents, relies on the judgment of the Honourable Supreme Court in the case of Kamal R. Khan Vs. State of Maharashtra [2009 (2) ALL MR 57]. He emphasised on the observations of the Supreme Court in paragraph No. 9 of the said judgment, which are reproduced herein below :-

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" Thus public order is a term of different significance and

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Cr.Appln./719/2013

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implication than the expression 'law and order'. Law and order is the outer most circle, the inner most being security of the State. These are obviously decipherable terms and expressions and have different ramifications and requirements in law. Merely because few people will come together and raise a protest and/or that a political leader is likely to abuse or misuse the exhibition of the picture per se would not be a ground which would fall within the ambit and scope of the expression 'public order' To control law and order is the primary obligation of the State and the State must essentially perform its duties with due adherence to law. For the purposes of its convenience or its inability to handle such situation, the State cannot transgress and infringe the fundamental rights and protection of the citizen. To carry out business and to have freedom of speech and expression both are protective rights and cannot be infringed upon by the State with such a casual approach. "

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This reliance of Shri Kazi, learned Advocate is from the view point that it is the duty of State / Police to control law and order. However, the State cannot transgress and infringe the fundamental rights and protection of the citizens. In the matter of Kamal R Khan (supra), Shri Kazi, learned Advocate, fairly submits that the issue before the Court was pertaining to Section 6(1) of the Bombay Cinemas (Regulation) Act, 1953. The petitioner - an actor and producer - in that case had produced film titled as "Deshdrohi" which was floated for release with effect from 14.11.2008 while production of the film was completed in January, 2008. The State of Maharashtra took a decision to suspend exhibition of this

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Cr.Appln./719/2013

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picture on and from 14th November, 2008 and passed an order dated 12th November, 2008. Thus, it is clear from the fact that the issue involved therein was altogether different and on the background of facts and provisions of law, brought before the Division Bench of this Court, the observations have been made by the Court in paragraph No.9 of the judgment, which are quoted herein above In the case on hand, the facts are altogether different. In our opinion, at this stage, judgment of the learned Division Bench of this Court, in the matter of Kamal R Khan (supra) may not be of help to the case of applicant.

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After giving consideration to the submissions of the learned counsel for the parties, in our opinion, in the facts of the present case, it is not possible for us, either to grant relief in terms of prayer clause (B) or prayer clause (C).

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20. Criminal Application, therefore, stands rejected.

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( M.T. JOSHI, J. ) ( S.B.DESHMUKH, J. )

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akl

Asaduddin Owaisi S/O Salauddin Owaisi v. the Commissioner of Police, Aurangabad and Others

Case brief

What is this about?

What did the court decide?

Asaduddin Owaisi S/O Salauddin Owaisi v. the Commissioner of Police, Aurangabad and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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