Calcutta High Court (Appellete Side)

Niladri Saha vs The State Of West Bengal And Others on 15 June, 2022

June 15, 2022 Sl. No.1-6 Court No.1 PA(SS) WPA (P) 258 of 2022 Niladri Saha vs.

The State of West Bengal and others

With

WPA (P) 261 of 2022 Priyanka Tibrewal vs.

State of West Bengal and others

With

WPA (P) 264 of 2022 Rivu Dutta vs.

Union of India and Others

With

WPA (P) 259 of 2022 Masum Ali Sardar vs.

The State of West Bengal and others

With

WPA (P) 260 of 2022 Paramita Dey vs.

The State of West Bengal and others

With

WPA (P) 256 of 2022 Devdutta Maji @ Devdutta Majhi vs.

The State of West Bengal and others

Ms. Susmita Saha Dutta, Ms. Pallabi Chatterjee, Advocates ... for the petitioner in WPA (P) 258 of 2022 Ms. Priyanka Tibrewal, Advocate ... petitioner-in-person in WPA (P) 261 of 2022 Mr. Subir Sanyal, Mr. Swatarup Banerjee, Mr. Krishnendu Bhattacharya,

WPA (P) 258 of 2022 and others

Mr. Kallol Mandal, Ms. Aparna Banerjee, Mr. Lokenath Chatterjee, Mr. Sukanta Ghosh, Ms. Sarda Sha, Ms. Sabita Roy, Ms. Mary Datta, Advocates ... for the petitioner in WPA (P) 264 of 2022 Mr. Sardar Amjad Ali, Senior Advocate Ms. Jhuma Sen, Advocate ... for the petitioner in WPA (P) 259 of 2022 Mr. Dipayan Kundu, Advocate ... for the petitioner in WPA (P) 260 of 2022 Mr. Surajit Nath Mitra, Senior Advocate Mr. Aniruddha Chatterjee, Mr. Kallol Mondal, Mr. Nilanjan Bhattacharjee, Mr. Aryak Dutta, Mr. Partha Ghosh, Mr. Ajay Chaubey, Mr. Anup Dasgupta, Mr. Ajit Mishra, Mr. Vikash Singh, Mr. Anindya Sundar Das, Mr. Sunny Nandy, Advocates ... for the petitioner in WPA (P) 256 of 2022 Mr. S. N. Mookherjee, ld. Advocate General Mr. Anirban Ray, ld. Government Pleader Mr. Amitesh Banerjee, Senior Standing Counsel Mr. Raja Saha, Mr. Debasish Ghosh, Mr. Nilotpal Chatterjee, Mr. Debraj Sahu, Advocates ... for the State Mr. Dhiraj Kumar Tribedi, Assistant Solicitor General Mr. Tarunjyoti Tewari, Advocate ... for the Union of India Mr. Billwadal Bhattacharyya, Assistant Solicitor General Mr. Bhaskar Prasad Banerjee, Advocate ... for the NIA Mr. Billwadal Bhattacharyya, Assistant Solicitor General Mr. Bhaskar Prasad Banerjee, Mr. Debasish Tendon, Ms. Shalini Ghosh, Advocates ... for the NIA in WPA (P) 256 of 2022

In pursuance to the previous order, learned Advocate

General has filed the report in the form of affidavit today

disclosing the details of the FIRs which have been

WPA (P) 258 of 2022 and others

registered in the Howrah Police Commissionerate,

Howrah Rural, Barasat Police District, Murshidabad

Police District, Jangipur Police District, Krishnanagar

Police District, Kharagpur Government Railway Police

(GRP), Sealdah GRP, Bidhannagar Police

Commissionerate and Diamond Harbour Police District

against the miscreants. The affidavit also discloses the

arrests which have been made in these districts in

pursuance to the FIR.

Learned Advocate General has submitted that the

State authorities are collecting the video footages to

identify the miscreants for the purpose of taking action

against them. He has also submitted that in last 48 hours

no untoward incident has taken place. He has referred to

the judgment of the Hon'ble Supreme Court in the matter

of Destruction of Public and Private Properties, In Re

vs. State of Andhra Pradesh and Others reported in

(2009) 5 SCC 212 wherein Hon'ble Supreme Court had

issued guidelines for adoption in the absence of

legislation to assess damage. In terms of the said

guidelines the action is required to assess the damage

caused to public and private properties in the name of

agitation, bandh, hartal etc. and to award compensation

related thereto. The guidelines further provide for

summoning of video or other recordings from private and

public sources to pin point the damage and establish

nexus with the perpetrators of the damage and the

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liability will be borne by the actual perpetrator of the

crime as well as the organizers of the event giving rise to

the liability.

Learned Advocate General has referred to the Section

15A, 15B and 15C of the West Bengal Maintenance of

Public Order Act, 1972 as amended by the West Bengal

Maintenance of Public Order (Amendment) Act, 2017.

These amended provisions provide for punishment for

committing mischief in respect of property, compensation

in addition to any punishment and power of the State

Government to impose collective compensation and read

as under:

"CHAPTER IVA

Mischief and Compensation

15A. Whoever,-

(a) commits, instigates, incites or otherwise abets the commission of mischief within the meaning of section 425 of the Indian Penal Code, 1860 and causes loss or damage to any property; or

(b) causes loss or damage to any property in any area during the period when an assembly of five or more persons in such area is prohibited by or under any law for the time being in force, or when such assembly is deemed as an unlawful assembly under section 141 of the Indian Penal Code, 1860, shall be punishable with imprisonment for the term as prescribed in the Indian Penal Code, 1860, for the respective offences.

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15B. Notwithstanding anything contained under section 15A, a person committing offence of mischief shall also be liable to pay the compensation to the extent of damage caused to the property as may be determined by the court.

15C. (1) If, after enquiry in the prescribed manner, the State Government is satisfied that the inhabitants of any area are concerned in, or abetting or insisting, the compensation of an offence punishable under Section 15A or harbouring persons concerned in the commission of the said offence or failing to render all assistance in their power to discover or apprehend the offender or offenders or suppressing material evidence of the commission of such offence, the State Government may, by notification in the Official Gazette, impose a collective compensation on such inhabitants and apportion such compensation amongst the inhabitants in such manner as may be prescribed:

Provided that the compensation so apportioned shall not be recovered from any of the inhabitants until the petition, if any, filed by him under sub- section (3) is disposed of.

(2) The notification made under sub-section (1), shall be proclaimed in the area by beat of drum or in such other manner as the State Government may think best in the circumstances to bring the imposition of the collective compensation to the notice of the inhabitants of the said area. (3) (a) Any person aggrieved by the imposition of the collective compensation or by the order of apportionment under sub-section (1), may, within

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thirty days of the notification, file a petition before the State Government or such other authority as it may specify in this behalf for being exempted from such compensation or for modification of the order of apportionment. No fee shall be charged for filing such petition.

(b) The State Government or the authority specified by it shall, after giving to the petitioner a reasonable opportunity of being heard, pass such order as it may think fit:

Provided that the amount of compensation exempted or reduced under this subsection shall not be realisable from any other person, and the total compensation imposed on the inhabitants of the area under sub-section (1) shall be deemed to have been reduced by that extent.

(4) Notwithstanding anything contained in sub- section (3), the State Government may exempt any of the inhabitants who have suffered loss or damage to their property in the manner stated in section 15A from the liability to pay the collective compensation imposed under sub-section (1) or any portion thereof.

(5) The State Government may, after such enquiry as it may consider necessary determine the amount of compensation which in its opinion may be paid to the person or persons who suffered loss or damage as aforesaid and pay the same out of the collective compensation and compensation collected under this Act.

(6) The portion of collective compensation payable by any person may be recovered by the State Government by certificate under the Bengal Public Demands Recovery Act, 1913."

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He has submitted that the Government is intending

to take action against the miscreants under the above

provisions and for that purpose the Government is in the

process of collecting the video footages from different

sources.

In WPA(P) 258 of 2022 and WPA(P) 256 of 2022,

supplementary affidavits have been filed. Submissions

have been made to the effect that large gathering are

taking place in the name of peaceful gathering wherein

provocative slogans are being raised and that in the name

of registering FIR even the innocent people are implicated

and that petitioners apprehend that on a particular day of

the week organized violence may flair. It is also submitted

that to control such eventuality Central Forces should be

called and the State authorities should not wait for

happenings of any such unwanted incident.

By the order dated 13th of June, 2022, we had

directed as under:

"In the meanwhile we express hope that the State authorities will take all possible steps to ensure that no untoward incident takes place and peace is maintained. In case, the State Police is unable to control the situation at any place then State authorities will take immediate steps to call the central forces. Concerned State authorities will also collect the video footage of the incident so that the miscreants can be identified and appropriate action can be taken against them. Learned Advocate General will also make the stand of State clear on

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the issue of grant of compensation to those who have suffered loss of property in the untoward incidents."

Having regard to the apprehension which have been

expressed, we direct the State authorities to assess the

ground situation in advance and take steps to call for the

Central Forces in terms of earlier directions in case if the

need so arises, before the situation goes out of control or

before any loss of life or property takes place.

The State authorities will take all possible preventive

steps to ensure that no such incident takes place.

The State authorities will also take expeditious steps

to collect the video footages and take action in terms of

the above mentioned provisions of the Act of 1972.

Let the further report in this regard be filed by the