1 1806.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1806 OF 2010 Om Ganesh Kala Krida Va Sanskrutik Mandal ...Petitioners Versus Inspector of Police & Ors. ...Respondents ...... Mr.P.D.Dalvi for Petitioners. Ms.S.V.Gajare, A.P.P. for Respondents. ...... CORAM:- A.M.KHANWILKAR AND A.P.BHANGALE, JJ. DATED:- DECEMBER 7, 2010. P.C. 1. This Writ Petition under Article 226 is filed on the assertion that the local Police Officials are unduly harassing the Petitioners and members of the Petitioner Club who assemble in the premises situated at Gat No.964, Near Laxmi Temple, Ring Road, Gargoti Road, Uttur, Taluka Ajara, District Kolhapur. It is the case of the Petitioners that no license for carrying on the activity of playing Rummy is required under any law, as and the said game being game of chance is not unlawful. 2. However, no specific incidents have been asserted in the Petition as 2 1806.10.sxw to when the Police Officials carried out raid or have instituted any criminal action against any of the member of the Petitioner Club. Besides, the relief which is claimed in the amended Writ Petition- prayer clause (a) is too general and is in the nature of simplicitor declaration. The same reads thus: “a) that this Hon’ble Court may be pleased to issue an appropriate writ, order or directions in the nature of prohibitation, directing the Respondents not to prohibit the members of the Petitioner’s Club to carry on its lawful activities in the said club.” 3. As and when the members of the Petitioner Club are confronted with the situation, pursuant to any action taken against them by the local Police, even though the activity carried out by them in the premises of the Petitioner Club is lawful activity, it will be open to them to pursue such remedy as may be permissible by law. 4. There is one more aspect which needs to be addressed by us. In the Petition, statement is made in Paragraph 3 that the members of the Petitioner Club assemble in the stated premises. The Police Inspector Mr.Ramesh Manikrao Sarwade attached to Ajara Police Station filed affidavit before us dated 5th October, 2010 which gives an impression that the factual position stated by the Petitioners about existence of the Club in 3 1806.10.sxw building Gat No.964, Near Laxmi Temple, Ring Road, Gargoti Road, Village Uttur, Taluka Ajara, District Kolhapur, is incorrect and no such Club is in existence. Besides, it was the contention of the learned A.P.P., on the basis of instructions of the said Police Inspector who was present in Court, that the said Officer had himself visited the said address and found that there was Hotel Laxmi in place. That position is recorded in our order dated 8th October, 2010. We were also informed that the said Police Official had recorded statement of Maruti Laxman Gurav. On that basis, we observed that there was no reason to discard the version of the Police Inspector and thought it appropriate to issue show-cause notice to the Petitioners as to why the Petitioners have made misleading statement in Paragraph 3 of the Writ Petition. 5. In response to this show-cause notice, the Petitioners filed reply affidavit to the show-cause notice as also relied on the affidavit of Maruti Laxman Gurav dated 12th October, 2010. The affidavits filed on record on behalf of the Petitioners substantiate the stand taken by the Petitioners in Paragraph 3 of the Writ Petition. Noticing the inconsistent stand taken by the Petitioners and the Police Inspector, this Court thought it appropriate to direct the Judicial Magistrate, First Class (`JMFC’), Ajara to inquire into 4 1806.10.sxw two points and submit report on the basis of which further orders could be passed on the show-cause notice issued to the Petitioners. We directed the JMFC to submit his report on the following two points: (1) Who was found in possession on the first floor of the building in question in and around June, 2010? (2) Who is presently in occupation of the premises on the first floor of the disputed building? 6. As ordered by this Court, the JMFC has submitted the inquiry report. The JMFC has not only personally visited the site but has also recorded statements of persons who claim to be occupants of house No.964 as well as of the neighbouring building and of Post Office. He has also recorded statement of persons who previously occupied house No.964 and also of the photographer. On the basis of the material gathered during the said inquiry, the two points have been answered by the JMFC which goes to show that the stand taken by the Police Inspector is incorrect and instead, that of the Petitioners as stated in Paragraph 3 is correct. In view of this opinion of the JMFC, we have no hesitation in discharging the show-cause notice issued to the Petitioners. At the same time, however, it is obvious 5 1806.10.sxw that the stand taken by the Police Inspector before this Court which resulted in resorting to inquiry to be undertaken by the JMFC, is belied. We therefore, think it appropriate to forward the report of the JMFC dated 27th October, 2010 to the Secretary, Home Department to take appropriate action against the said Police Inspector. In our opinion, there can be no reason to doubt the correctness of the inquiry report submitted by the JMFC. That presupposes that the Police Inspector not only made incorrect statement before the Court but also filed false and misleading affidavit which necessitated inquiry by the JMFC. It is certainly a matter of concern. Besides, it may be good ground to proceed against the said Police Inspector by way of Departmental action. We hope and trust that the Secretary, Home Department will take appropriate action against the concerned Police Inspector Mr.Ramesh Manikrao Sarwade attached to Ajara Police Station, Kolhapur in accordance with law and report compliance to this Court. We are informed that the concerned Police Inspector has now been transferred to Chandrapur District. 7. As a matter of fact, we could have proceeded against the concerned Police Inspector for having prepared false affidavit and also using the same in the proceedings before this Court which, by itself, is a criminal offence. 6 1806.10.sxw However, the proposed Departmental action would be sufficient to take corrective action against the erring Police Official. 8. Petition and show-cause notice disposed of on the above terms. 9. Matter be listed under caption `directions’ on 7th February, 2011 for reporting compliance. (A.P.BHANGALE, J.) (A.M.KHANWILKAR, J.)