Rajib Samanta vs The State Of West Bengal & Ors
2023 Latest Caselaw 5516 Cal

                        HIGH COURT AT CALCUTTA

                CONSTITUTIONAL WRIT JURISDICTION

Present:

THE HON'BLE JUSTICE JAY SENGUPTA

                              WPA 20520 of 2023
                                 Rajib Samanta
                                     Versus
                     The State of West Bengal & Ors.



For the petitioner             Mr. Rajdeep Majumder
                               Mr. Moyukh Mukherjee
                               Ms. Sagnika Mukherjee




For the State                  Mr. Wasim Ahmed
                               Sk. Md. Masud


For the Respondent No.9. Mr. Indrajeet Dasgupta

Mr. Shounak Ghosh

Heard on 24.08.2023

Judgment on 24.08.2023

JAY SENGUPTA, J:

This is an application under Article 226 of the

Constitution of India challenging an ex parte order dated

18.08.2023 passed by the Sub-Divisional Magistrate, Contai,

Purba Medinipur in Misc. Case No.673/2023 under Section

144(2) of Cr.P.C.

Further report filed on behalf of the State is taken on

record.

Learned counsel representing the petitioner submits that

the petitioner is the Mandal President of an opposition political

party. His party wanted to hold a rally at Khejuri, Purba

Medinipur on 19.08.2023. Accordingly, intimation was given to

the local police station on 14.08.2023. On 18.08.2023 the

concerned Sub-Divisional Magistrate promulgated an order

under Section 144(2) of the Code in the same area making

reference to the proposed rally by the petitioner. Thereafter the

petitioner was constrained to change the date for such rally. It

was now fixed on 26th of this month. This was intimidated to

the Officer-in-Charge of Talpati Ghat Coastal Police Station who

refused to give permission for holding rally on 18.08.2023

showing the promulgation of the order under Section 144 of the

Code. This was only to curb the exercise of democratic rights by

the petitioner and his partymen. The order under Section 144 of

the Code does not even make any reference to the criminal cases

that might have been instituted. In fact, in the alternative, it is

submitted that the order does not survive the date i.e.

19.08.2023 because the language used went like this

"Promulgation of 144 Cr.P.C. ..." .... "On 19.08.2023 from 15.00

hrs. ..." Reliance is placed on a decision of the Constitution

Bench of the Hon'ble the Supreme Court in Babulal Parate v.

State of Maharashtra and others, AIR 1961 SC 884. It is

submitted that a mere likelihood or tendency would not do. The

power conferred by the section is exercisable only if the

Magistrate is satisfied that immediate prevention of particular

acts is necessary. There is no indication of the same in the

impugned order. During panchayat election there had been

violence in so many places. In fact, there had been more

violence than in Khejuri. In several places, board formation had

to be postponed to another date. At least in Khejuri, despite

some incidents, board formation could be done on the date fixed

i.e. on 10.08.2023. In those more affected places the

Administration has not promulgated orders under Section 144

of the Code. The present promulgation of such order is

malicious and is only meant to prevent the petitioner from

holding a political rally.

Learned advocate for the State relies on the reports and

submits that in the first report, reference has been made to

registration of 4 criminal cases on 10.08.2023, 13.08.2023,

14.08.2023 and 18.08.2023. Because of the prevailing

situation, the Administration thought it fit to promulgate an

order under Section 144 of the Code. It is because the

promulgation of such order that some normalcy is prevailing

there. It appears from the second report filed by the State that

04.09.2023 and 05.09.2023 are fixed for formation of Sthayi

Samity of the Panchayat Samity in and around Khejuri-II. The

area mentioned by the petitioner for holding such rally is not

sufficient to accommodate a huge crowd of about 10,000

supporters.

I have heard submissions of the parties and have perused

the writ petition and the reports filed by the State.

The terms on which an order can be passed under Sections

144 or 144(2) of the Cr.P.C. are "... if such 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 ..."

From the impugned order passed under Section 144(2) of

the Code it does not appear that the above referred conditions

have been taken into account. The only two considerations

which are there in the prefatory part are that a political rally is

to be held there and that there are chances of serious breach of

peace and tranquility normal functioning of this locality. Not

even a particular incident or a criminal case has been referred

to.

In Babulal Parate (supra) the Constitution Bench of the

Hon'ble Supreme Court held as under:

"25. The language of Section 144 is somewhat

different. The test laid down in the section is not merely

"likelihood" or "tendency". The section says that the

Magistrate must be satisfied that immediate prevention of

particular acts is necessary to counteract danger to public

safety etc. The power conferred by the section is exercisable

not only where present danger exists but is exercisable also

when there is an apprehension of danger."

No satisfaction of the Magistrate to such effect has been

recorded. This test could not be satisfied in the facts and

circumstances of the present case so as to promulgate an order

under Section 144 of the Code.

Promulgation of an order under Section 144 of the Code

cannot be done at the drop of a hat. It has to be done by

exercising more care and circumspection and with a better

reasoning. Afterall, we are dealing with rights of the citizens of

India.

In view of the above, the impugned order passed under

Section 144(2) of the Code cannot be sustained. Accordingly,

the same is set aside.

The duty of the Administration is to provide a level playing

field to all political dispensations to hold rallies and processions.

The law and order is a thing that the Administration would have

to take care of.

As it appears from the further report filed by the State,

there is admittedly some normalcy in the situation.

It also does not appear that from the date on which earlier

meeting was cancelled till this day there had been any untoward

incident in the locality. The circumstances do not appear to be

such where a political rally or a meeting cannot be held.

In the interest of justice, I pass the following directions:

(i) The petitioner and his associates shall be permitted

to hold a political meeting/rally at the said venue

on 26th August, 2023 from 2 pm to 6 pm.

(ii) The petitioner shall nominate 3 persons and

intimate their names and contact details to the

Officer-in-Charge of the local police station who

would be the responsible persons for conducting

such meeting.

(iii) The participants of the meeting shall see to it that

undue harassment is not caused to the local

residents.

(iv) Sound regulations shall be meticulously followed.

(v) The meeting shall be conducted peacefully and the

speakers shall not use abusive language or incite

violence.

(vi) After the meeting is over, the venue shall be cleared

by the organisers of the meeting.

(vii) The police authorities under the direct supervision

of the SP of Purba Medinipur shall deploy adequate

number of personnel to provide security to the

meeting as well as to ensure that no breach of

peace takes place in the locality.

With the aforesaid observations, WPA 20520 of 2023 is

disposed of.

Urgent certified copy of this order, if applied for, be

supplied to the parties upon compliance of all requisite

formalities.

Parties shall act on a server copy of this order duly

downloaded from the official website of this Court.

(Jay Sengupta, J)

SG