Case Note & Summary
The petitioner, Shashikant Bhurya Kokani, filed a Criminal Writ Petition under Article 226 of the Constitution of India before the Bombay High Court, Bench at Aurangabad, seeking quashing of a notice dated 8th November 2014 issued by the Police Inspector, Visarwadi Police Station (Respondent No.3), purportedly under Section 149 of the Code of Criminal Procedure, 1973 (CrPC). The notice directed the petitioner to remove his agricultural implements and not to cultivate agricultural lands bearing Gat Nos.3A, 3B, 196/1 and 203/1 situated at village Shravani, Taluka Navapur, District Nandurbar. The petitioner also sought a direction to the Superintendent of Police, Nandurbar (Respondent No.2) to provide him adequate police protection for cultivating the said lands. The factual background reveals that one Chapibai had adopted Ramdas Sakharam Kokani by a registered adoption deed, and consequently, the agricultural lands came into the possession of Ramdas. The petitioner and his family members claim through Ramdas Sakharam Kokani. After the demise of Chapibai, other relatives, including the private respondents (Respondent Nos.4 to 8), started obstructing the petitioner's possession and cultivation. The petitioner had previously filed a civil suit and obtained an injunction in his favour. Despite the civil court's order, the private respondents continued to threaten the petitioner, leading him to seek police protection. Instead of providing protection, the police issued the impugned notice under Section 149 CrPC, directing the petitioner to stop cultivation. The legal issues before the court were whether the notice under Section 149 CrPC was validly issued and whether the petitioner was entitled to police protection. The petitioner argued that the notice was without jurisdiction as there was no imminent breach of peace, and that the police were duty-bound to protect his lawful possession. The respondents, including the State and private parties, contended that there was a dispute over the land and that the notice was issued to prevent a breach of peace. The court analyzed the scope of Section 149 CrPC, noting that it can be invoked only when there is an imminent breach of peace and after a preliminary inquiry. The court found that the notice was based solely on the complaint of the private respondents, who had no right over the land, and that there was no material to show any imminent breach of peace. The court also noted that the petitioner was in lawful possession and had a civil court injunction in his favour. Consequently, the court quashed the notice dated 8th November 2014 and directed the police to provide adequate protection to the petitioner for cultivation of the said lands during the Rabi season. The court further directed that if any obstruction is caused by the private respondents, the police shall take appropriate action against them.
Headnote
A) Criminal Procedure Code - Section 149 CrPC - Preventive Notice - Imminent Breach of Peace - The notice under Section 149 CrPC was issued to the petitioner directing him to remove his agricultural implements and not to cultivate his own land. The court held that Section 149 CrPC can be invoked only when there is an imminent breach of peace and the notice must be based on a preliminary inquiry. In this case, there was no material to show any imminent breach of peace, and the notice was issued merely on the complaint of private respondents who had no right over the land. The court quashed the notice. (Paras 5-7) B) Criminal Procedure Code - Section 149 CrPC - Police Protection - Lawful Cultivation - The petitioner, being the lawful owner in possession of the land, sought police protection for cultivation. The court held that the police are duty-bound to protect the life and property of citizens. Since the petitioner had a registered adoption deed and was in possession, the court directed the police to provide adequate protection for cultivation during the Rabi season. (Paras 8-9) C) Constitutional Law - Article 226 - Writ Jurisdiction - Maintainability - The court entertained the petition under Article 226 of the Constitution of India for quashing the notice under Section 149 CrPC and for direction to provide police protection, as the notice was without jurisdiction and the petitioner's fundamental right to livelihood was affected. (Para 3)
Issue of Consideration
Whether a notice under Section 149 of the Code of Criminal Procedure, 1973 can be issued to prevent a lawful owner from cultivating his land in the absence of any imminent breach of peace, and whether the petitioner is entitled to police protection for cultivation.
Final Decision
The court quashed the notice dated 8th November 2014 issued under Section 149 CrPC and directed the police to provide adequate protection to the petitioner for cultivation of the lands during the Rabi season. If any obstruction is caused by the private respondents, the police shall take appropriate action against them.
Law Points
- Section 149 CrPC requires imminent breach of peace
- police cannot use preventive powers to settle civil disputes
- writ petition under Article 226 maintainable for police protection
