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2011 DIGILAW 72 (BOM)

Shaikh Abdul Naeem v. State of Maharashtra

2011-01-18

A.M.KHANWILKAR, A.R.JOSHI

body2011
Judgment :- 1. This letter-petition is received through jail. By this petition, the order passed by the Special Judge dated 18.9.2010 below Exhibit 446 in Special M.C.O.C. Case No.16/2006 has been challenged. By the said application the petitioner-accused No.18 made grievance to the trial Court that he was unjustly compelled to remove his foot wear outside the court hall. The Special Judge, however, rejected the application on the reasoning that it was the outlook of the security guards outside the court hall to impose restrictions on persons and the accused entering in the court hall. It has further observed that if the Security Guards directs the accused not to enter the court hall wearing his foot wear then it is for the accused to abide by the said instructions. 2. In the petition, it is alleged that a practice has developed to direct all the accused persons to remove their foot-wear before entering the court rooms, appearing in Special Courts under MCOC, TADA and POTA. This practice is being followed presumably as a result of some incident of hurling of foot wear towards the judge which had happened in March, 2010. 3. There can be no doubt that the said incident of hurling of foot wear at the Judge was an abrasion. It has been a solitary incident. The same has happened in a particular Court and was the inappropriate reaction of one of the accused. In the first place, such abrasion or solitary incident cannot be made the basis to make it a general rule by the Security Personnel manning the court rooms that every accused either appearing or being produced by the police before the Court should be compelled to remove his foot wear outside the Court room. It would be a different matter, if the security personnel had reason to believe that a particular accused was likely to indulge in hurling his foot wear towards the Judge after entering the court room or has done it in the past while appearing before the court. That is not the stand taken by the respondents before us. Notably, the respondents have stated on affidavit that no written instructions have been issued by any Higher Authority or Appropriate Authority of the Police Department. At the same time, reference is made to the recommendation made by the Special Public Prosecutor that such practice be started. That is not the stand taken by the respondents before us. Notably, the respondents have stated on affidavit that no written instructions have been issued by any Higher Authority or Appropriate Authority of the Police Department. At the same time, reference is made to the recommendation made by the Special Public Prosecutor that such practice be started. However, from the affidavit of Shri Vinod Satav, Assistant Commissioner of Police, Mumbai, it does appear that this practice has been started by the Security Personnel manning MCOCA, POTA AND TADA Court rooms on their own without any written instructions from their Superiors or for that matter having backing of law. 4. The counsel for the respondents has pressed into service Section 68 of the Mumbai Police Act which provides that the person is bound to conform to reasonable orders of police. We fail to understand as to how this provision can be invoked to defend the action of generalizing the situation as has been done by the Security Personnel manning the concerned court rooms where cases under MCOC, POTA or TADA are being tried. 5. Reliance is also placed on Police Manual, 1999, in particular, Clause 430 (4) occurring in Part 12 of the Manual. The same reads thus: “Court Orderly or in-charge Police Constable of the Escorts to take search of the persons of the accused or prison inmates before bringing them in the dock in order to prevent them from entering with foot wear except the one with the lace or the open with button or deadly/dangerous weapon with them.” 6. Even the plain reading of this provision it can be no justification to uphold the action of the security personnel manning the court rooms, in compelling removal of all types of foot wear of the accused as a precondition for entering the court room. On the other hand, we find that Rule 28 of the Criminal Manual issued by the High Court of Judicature, Appellate Side, Bombay clearly answers the controversy on hand. It provides thus : 28. Footwear permitted: “Persons attending courts and even witnesses taking the oath should be allowed to keep their footwear”. On the other hand, we find that Rule 28 of the Criminal Manual issued by the High Court of Judicature, Appellate Side, Bombay clearly answers the controversy on hand. It provides thus : 28. Footwear permitted: “Persons attending courts and even witnesses taking the oath should be allowed to keep their footwear”. In spite of this provision, if, the Security Personnel have resorted to compelling all the accused persons appearing before the Courts taking up cases under MCOC, POTA or TADA to remove their foot wear before entering the Court room in the name of security, the same cannot be countenanced. 7. As aforesaid, in a given case, if the security Personnel have reason to believe that a particular person is likely to indulge in misbehaviour in Court or for that matter had done so in the past, it would be open to the Public Prosecutor appearing in the case to move a formal application before the Court to invite an order against such person so as to compel him to remove his foot wear as a precondition to enter the court room in the name of security. That request will have to be considered by the Court on the basis of fact situation of the case. 8. In our opinion, the impugned order cannot stand the test of judicial scrutiny. Accordingly, the general practice followed by the Security Personnel manning the court rooms taking up cases under the provisions of MCOCA, POTA and TADA as has been noticed in the petition, as also admitted in the reply affidavit, will have to be stopped forthwith. 9. Petition is disposed of on the above terms. 10. The Court expresses a word of gratitude to the learned Amicus Curiae for her able assistance for espousing the cause of petitioner. 11. Copy of the order be forwarded to the petitioner who is in jail forthwith for information.