Mainak Das vs State Of West Bengal & Anr
2022 Latest Caselaw 3511 Cal

Citation : 2022 Latest Caselaw 3511 Cal
Judgement Date : 24 June, 2022

Calcutta High Court (Appellete Side)

Mainak Das vs State Of West Bengal & Anr on 24 June, 2022

                 IN THE HIGH COURT AT CALCUTTA
                CRIMINAL REVISIONAL JURISDICTION
                          APPELLATE SIDE


The Hon'ble JUSTICE BIBEK CHAUDHURI

CRR 2006 of 2022

Mainak Das Vs.

State of West Bengal & Anr.

For the petitioner: Mr. Ayan Bhattacharya, Adv., Mr. Biswanath Chatterjee, Adv., Ms. Saheli Sen, Adv., Mr. Sobhan Kumar Pathak, Adv.

For the State:-

Ms. Faria Hossain, Adv., Ms. Sujata Das, Adv.

Heard on: 24th June, 2022.

Judgment on: 24th June, 2022.

BIBEK CHAUDHURI, J. : -

This is an application under Section 482 of the Code of Criminal

Procedure filed by the opposite party in a proceeding under Section 144(2)

of the Code of Criminal Procedure for quashing of such proceeding

registered as MP Case No.1747 of 2022 and order dated 20th May, 2022 in

the said proceeding.

It is pointed out by Mr. Ayan Bhattacharya, learned Advocate for

the petitioner that the application under Section 144(2) of the Cr.P.C was

filed by the opposite party No.2 praying for an order restraining the

petitioner and his men and agents from removing any material, porcelain

insulator from the schedule property illegally and dishonestly and

directing the Officer-in-Charge, Khardah Police Station to keep strong vigil

over the situation so that the present petitioner cannot remove any

material illegally from the suit property.

The Executive Magistrate, Barrackpore Sub-Division passed the

impugned order on 20th May, 2022 directing OC Khardah P.S to inquire

into the matter and submit a report and ensure that no illegal activities

takes place in the schedule property without due process of law.

On perusal of the instant revisional application and the impugned

order this Court is of the view that the instant revision can be disposed of

here and now with the assistance of the learned P.P-in-Charge. In view of

such circumstances, Ms. Sujata Das, learned P.P-in-Charge is requested

to assist the court on behalf of the State.

Learned Legal Remembrancer, Government of West Bengal is

requested to regularize the appointment of Ms. Sujata Das in the instant

case.

Copy of the revisional application is served upon the learned P.P-in-

Charge.

The application is taken up for hearing.

Mr. Ayan Bhattacharya, learned Advocate for the petitioner submits

that Section 144 is provided to prevent disorders, obstructions and

annoyance with a view to secure public weal by maintaining public peace

or tranquility. Such orders are required to be passed during emergent

circumstances. Bare recital about breach of pubic peace and tranquility is

not sufficient to invoke the extraordinary power of Section 144 of the

Cr.P.C by the Executive Magistrate. Section 144 also cannot be used to

establish individual right of a person. In support of his contention, Mr.

Bhattacharya refers to a decision of the Coordinate Bench of this Court in

Mohan Kumar More vs. State of West Bengal & Ors. reported in E Cr.

N 2009(3) 81 (Cal). In the above referred report the Coordinate Bench of

this Court followed the decision of the Hon'ble Supreme Court in the case

of Madhu Limaye & Anr. vs. Sub-Divisional Magistrate, Monghyr &

Ors. reported in AIR 1971 SC 2748.

In State of Karnataka & Anr. vs. Praveen Bhai Thogadia reported

in 2004 (4) SCC 684, the Hon'ble Supreme Court held that the object of

Section 144 of the Code is issued to legislative intention to preserve public

peace and tranquility without lapse of time, acting emergently, if

warranted, giving thereby paramount importance to societal needs by

even overriding temporarily private rights keeping in view public interest.

So for as the present case is concerned, it is clear that the question

as to right of the respective parties in respect of some property is the

subject matter of consideration. In a dispute between two parties of

individual nature having no iota of material on disturbance of public

peace and tranquility, no order under Section 144 can be passed.

Moreover, it is found from the certified copy of order sheet that the

Executive Magistrate, Barrakpore Sub-Division only file in some copies in

a physostyled order.

In Sharmishtha Chowdhury & Anr. vs. State of West Bengal &

Anr. reported in 2018 CRI. L.J 359 a Coordinate Bench of this Court

quote rule 183 of Calcutta High Court Criminal (Subordinate Court) Rules

1985 which reads as follows:-

"R.183. Orders requiring the exercise of judicial discretion

and the final order shall be recorded by the Magistrate in his own hand or

typed by him, others may be recorded under his direction by the Bench

Clerk." Rule 183 of the Calcutta High Court Criminal (Subordinate Court)

Rules, 1985 is applicable to the Executive Magistrate when he acts under

Section 144 of Cr.P.C.

In Paragraph 36 of Sharmishtha Chowdhury (supra) this Court has

passed the following guideline which is applicable to the Executive

Magistrate:-

"36. Accordingly, I deem it necessary to pass the following directions in exercise my powers of superintendence for future guidance of the criminal courts:-

(a) Judges/Magistrates shall record orders strictly in terms of Rule 183 of the Criminal Rules and Orders (Sub- ordinate Court Rules), 1985.

(b) Alternatively, in view of the technological advancement and the availability of personal computers/laptops to the judicial personnel, they may also transcribe their orders on the computers and take a printout thereof and upon affixation of their signature thereto, the said

hardcopy shall be treated as a valid transcription of the order passed by the said court.

(c) Under no circumstances, any judicial officer shall take assistance of any external agency particularly police officers in the matter of recording and/or transcribing orders of the Court.