In an application filed under Article 226 of the Constitution, the High Court of Calcutta held that promulgation of an order under section 144 of the CrPC cannot be done at the drop of a hat and has to be done by exercising more care and circumspection with better reasoning because it deals with rights of the citizens of India.
Brief Facts:
In the current case, an application has been filed under Article 226 challenging an ex parte order passed by the Sub-Divisional Magistrate under section 144(2) of CrPC. The petitioner is the Mandal president of an opposition political party and his party wanted to hold a rally at Khejuri, Purba Medinipur. Accordingly, the local police were informed, and the Sub-Divisional Magistrate promulgated an order under Section 144(2) of the Code in the same area referring to the proposed rally by the petitioner. Because of this, the petitioner had to change the date of the rally. The new date was intimidated by the officer-in-charge who refused to permit holding the rally.
Contentions of the Petitioner:
The Learned Counsel for the Petitioner submitted that the impugned order was passed to curb the exercise of democratic rights of the petitioner as well as his partymen. Further, it has been contended that there is no reference to the criminal cases that might have been instituted. Then reliance was made on the case Babulal Parate v. State of Maharashtra and others and accordingly, it was submitted that a mere likelihood or tendency would not be enough to exercise the power conferred by the section and it is only exercisable if the magistrate is satisfied that immediate prevention of particular acts is necessary. Since there is no indication of the same in the impugned order and there had been no exercise of this power when there was actual violence accordingly it was contended that the impugned order was malicious and was only meant to prevent the petitioner from holding a political rally.
Contentions of the Respondent:
The Learned Counsel for the Respondent relied on the reports that were made for the registration of 4 criminal cases and accordingly, they contended that the administration thought it fit to promulgate an order in section 144 of the code. It was further contended that it was because of the impugned order that some normalcy was prevailing. It was also added that the area mentioned by the petitioner for holding the rally was not sufficient to accommodate the huge crowd of about 10,000.
Observations of the Court:
The court first noted that the order can be passed under section 144 or 144(2) of the CrPC if the magistrate considers that such direction is likely to prevent or tend to prevent obstruction, annoyance, or injury to any person lawfully employed, or tender to harm life, health or safety. Then the court noted that the impugned order did not consider the referred conditions. They further added that the only two considerations that the impugned order talks about are that a political rally was to be held there and that there were chances of a serious breach of peace and tranquillity, but there was no mention of a particular incident or even a criminal case has not been referred. The court also mentioned that an order cannot be promulgated under section 144 at the drop of a hat, it has to be done by exercising more care and circumspection with better reasoning as this order concerns the rights of the citizens.
The decision of the Court:
The Court held that the impugned order passed under section 144(2) of the Code cannot be sustained and the same was set aside.
Case Title: Rajib Samanta v. The State of West Bengal & Ors.
Coram: Hon’ble Justice Jay Sengupta
Case no.: WPA 20520 of 2023
Advocate for the Petitioner: Mr. Rajdeep Majumder, Mr. Moyukh Mukherjee, Ms. Sagnika Mukherjee
Advocate for the Respondents: For the state - Mr. Wasim Ahmed, Sk. Md. Masud
For the respondent no. 9 - Mr. Indrajeet Dasgupta, Mr. Shounak Ghosh
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