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 2007 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.
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.
(d) Any breach of such duty shall invite departmental
proceeding so far as the judicial personnel is concerned."
The learned Magistrate has not followed the above guideline while
passing the impugned order. Furthermore, in respect of dispute
exclusively between two individuals no proceeding under Section 144 of
the Code can be enunciated. Thus, the impugned proceeding being void is
quashed.
The instant criminal revision is thus allowed on contest, however
without costs.
(Bibek Chaudhuri, J.)
