Calcutta High Court (Appellete Side)
Suvendu Adhikari And Anr vs The State Of West Bengal And Ors on 28 February, 2024
Author: Kausik Chanda
Bench: Kausik Chanda
28.02.2024
Sl. No. 15
Suman
Ct.No.238.
WPA 5237 of 2024
Suvendu Adhikari and Anr.
Vs.
The State of West Bengal and Ors.
Mr. Rajdeep Majumder
Mr. Moyukh Mukherjee
Mr. Suryaneel Das
Mr. Chiranjit Pal
..for petitioner no.1
Mr. Billwadal Bhattacharjee
Mr. Tarunjyoti Tewari
Mr. Anish Kumar Mukherjee
Mr. Suryaneel Das
..for the petitioner no.2
Mr. Kishore Datta, Ld. Advocate General
Mr. Biswabrata Basu Mallick
Mr. Debangshu Dinda
...for the State
Mr. Ashoke Kumar Chakraborty
..Ld. Addl. Solicitor General of India
Mr. Dhiraj Trivedi
..Ld. DSGI
Mr. Tirtha Pati Acharyya
..for Union of India
This Court by an order dated February 19, 2024
passed in WPA 4708 of 2024 (Suvendu Adhikari versus
The State) permitted the petitioners to visit
Sandeshkhali Gram Panchayet-II under Sandeshkhali
Block-II, 24 Parganas (North).
A Division Bench of this Court by an order dated
February 20, 2024 passed in MAT 368 of 2024,
2
declined to interfere with the order passed by this
Court.
The petitioners have again approached this Court by
filing this writ petition with a prayer to allow them to
visit Haldarpara under Jeliakhali Gram Panchayet.
The police report dated February 26, 2024 based
on which the impugned order dated February 26, 2024
the Sub-Divisional Magistrate, Basirhat under Section
144 of the Code of Criminal Procedure was reimposed
in Sandeshkhali Police Station area, is produced by
the learned Advocate General.
To justify imposition of Section 144 of the Code of
Criminal Procedure, 1973, Mr. Kishore Datta, learned
Advocate General has drawn my attention to the
following segments of the police report dated February
26, 2024.
"Teams of police personnel during their evening
and night patrolling duty in different areas of
Sandeshkhali PS have reported that while interacting
with local people gathered that the local people are
apprehending that there are every chance of serious
rioting and arson if section 144 Cr. P.C. is withdrawn."
The order operates in the following area till
February 29, 2024.
1.Sandeshkhali GP 3 a. Trimoni Bazar b. Khulna Ghat c. Patrapara
2. Durga Mandop GP a. Gabberia Market
3. Khulna GP a. Situlia bazar b. Khulna bazar c. Hatgacha bazar
4. Bermajur-II GP a. Dhamakali Ghat
5. Jeliakhali GP a. Haldarpara
6. Bermajur-I GP
7. Bermajur-II GP This Court is specifically concerned with the imposition of promulgation under Section 144 of the Code of Criminal Procedure in respect of Haldarpara under Jeliakhali Gram Panchayet.
It is not in dispute that the first order under Section 144 of the Code of Criminal Procedure, 1973 in respect of Halderpara was imposed on February 9, 2024. The said order was, however, set aside by a Co- ordinate Bench of this Court. Thereafter, successive orders under Section 144 of the Code of Criminal 4 Procedure were imposed on February 13, 2024, February 20, 2024, February 23, 2024 and lastly on February 26, 2024.
In all the reports filed by the police mention only an incident alleged to have been occurred in the said area on February 9, 2024. The orders of the Sub- Divisional Magistrate, Basirhat passed from time to time also mention the said incident only.
The relevant reports filed by the police and the orders passed by the Sub-Divisional Magistrate, Basirhat do not reveal any other untoward incident or deterioration of law and order situation in Haldarpara.
No doubt assessment of the law and order situation is a matter of subjective satisfaction of the administration. It is not realistic for this Court to make the assessment. In judicial review, the Court cannot substitute its own satisfaction for that of the administration.
However, in imposition of the order dated February 26, 2024 under Section 144 in Haldarpara area, it does not appear to this Court that there was any material available before the Magistrate or he was otherwise satisfied.
I must also take note of the fact that Sandeshkhali Police Station area consists of different islands separated 5 from each other by creeks. Situation in a particular island may not always justify a blanket order of Section 144 in respect of the whole area.
In my view, the tests as have been enumerated in Anuradha Bhasin versus Union of India reported at (2020) 3 SCC 637 have not been satisfied in imposing Section 144 of the Code of Criminal Procedure in respect of Haldarpara under Jeliakhali Gram Panchayet.
The relevant part of the said judgment is quoted below:-
"148. Before parting we summarise the legal position on Section 144 CrPC as follows:
148.1. The power under Section 144 CrPC, being remedial as well as preventive, is exercisable not only where there exists present danger, but also when there is an apprehension of danger. However, the danger contemplated should be in the nature of an "emergency" and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed.
148.2. The power under Section 144 CrPC cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights.
148.3. An order passed under Section 144 CrPC should state the material facts to enable judicial review of the same. The power should be exercised in a bona fide and reasonable manner, and the same should be passed by relying on the material facts, indicative of 6 application of mind. This will enable judicial scrutiny of the aforesaid order. 148.4. While exercising the power under Section 144 CrPC, the Magistrate is duty-
bound to balance the rights and restrictions based on the principles of proportionality and thereafter apply the least intrusive measure. 148.5. Repetitive orders under Section 144 CrPC would be an abuse of power."
In respect of Haldarpara, in absence of any material available before him by a police report or otherwise the Sub-Divisional Magistrate, Basirhat has mechanically imposed the order under Section 144 without satisfying himself as to the justification of the same.
In my view, successive imposition of Section 144 of the Code of Criminal Procedure in Haldarpara under Jeliakhali Gram Panchayet on and from February 9, 2024 to February 26, 2024 has not been done in accordance with the parameters as indicated in Anuradha Bhasin (supra).
Mr. Dutta, submits that keeping in mind the previous conduct of the writ petitioner no.1, this writ petition should not be entertained. He submits that petitioner no.1, taking advantage of the immunity granted by a Co-ordinate Bench of this Court by an order dated December 8, 2022 passed in WPA 25522 of 7 2022 (Suvendu Adhikari-versus- State of West Bengal and Ors.), has violated the order dated February 19, 2024 and February 20, 2024 passed by this Court and the Division Bench, respectively.
Mr. Dutta has submitted that petitioner no.1 during his visit on February 20, 2024 has violated the undertaking furnished by him. Mr. Dutta wants to file an affidavit disclosing the violation by petitioner no.1. Learned advocate for the petitioners, however, disputes such fact.
In that view of the matter, let an affidavit-in- opposition be filed within one week from date.
Reply thereto, if any, may be filed by the petitioners within three days thereafter.
List this matter after ten days under the same heading.
In view of the discussion above, order dated February 26, 2024 passed by the Sub-Divisional Magistrate, Basirhat is stayed until further order insofar as it relates to Haldarpara under Jeliakhali Gram Panchayet under Sandeshkhali Police Station. Consequently, the petitioners will be permitted to visit Haldarpara under Jeliakhali Gram Panchayet on February 29, 2024 with the same terms and conditions as was imposed in the order dated February 19, 2024 8 passed by this Court in WPA 4078 of 2024 and by the Division Bench in MAT 368 of 2024 dated February 20, 2024. The undertaking should be furnished by the petitioners themselves.
Mr. Dutta, learned Advocate General has prayed for stay of operation of the order. Such prayer is considered and rejected.
All parties shall act on the server copy of this order duly obtained from the official website of this Court.
(Kausik Chanda, J.)