Calcutta High Court (Appellete Side)
Debatosh Guha & Anr vs Unknown on 6 January, 2023
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
06.01.2023 Sl. No. 06 Srimanta Ct.No. 42 CRR/4610/2022 In the matter of : Debatosh Guha & Anr.
Mr. Sabyasachi Banerjee, Adv., Mr. Sharequl Haque, Adv., Mr. Aditya Ratan Tiwary, Adv., Mr. P. Khan, Adv., Mr. Amitabrata Hait, Adv., Mr. Subhajit Manna, Adv., Ms. Ritu Das, Adv., Mr. Suman Majumdar, Adv.
...for the petitioner.
Petitioner no. 1 is the full brother of the opposite party nos. 2 and 3. Opposite party no. 4 is the sister of the petitioner. Indisputably all of them reside at premises no. P-780, Lake Town, Block - A, Calcutta - 700089. Petitioner no. 2 is the son of the petitioner no. 1. Petitioners reside on the second floor of the said house while opposite party no. 2 resides on the third floor of the said house with their respective family members. Opposite party nos. 3 and 4 reside in different premises within Lake Town Police Station. The opposite parties initiated a proceeding under Section 144(2) of the Code of Criminal Procedure stating, inter alia, that on 21st November, 2022 at about 11.00 A.M. taking advantage of the absence of the opposite parties the petitioners cut away and removed all big and small trees standing in front of premises no. 780, Block - A, Lake Town. It is also stated that the said trees were planted within the plot of the said premises and the petitioners unilaterally could not cut the said trees. It is also alleged that when the opposite parties asked as to why the petitioners cut the trees 2 they disclosed that they would construct a garage on the said vacant space.
On the basis of the said application the Executive Magistrate passed an order dated 23 rd November, 2022 directing the Inspector-in-Charge, Lake Town Police Station to maintain law and order in and around the scheduled property during the period till submission of Police report. On 20 th December, 2022 Police submitted a report wherefrom it is learnt that the present petitioners installed CCTV on the staircase of the said house which is common to both the parties without informing the opposite party. Over installation of CCTV there was family dispute between the parties. Police also submitted a report that the petitioner and his son cleared the front space of the said premises cut some trees and tried to take possession over the said place. Though the said Police report was submitted on 20 th December, 2022 the Executive Magistrate passed an order dated 21st December, 2022 stating, inter alia, that the Police report was not received in connection with MP Case No. 186/2022.
It is submitted by Mr. Banerjee that marriage of petitioner no. 2 is fixed on 26 th January, 2023. In order to erect an absolutely temporary pandal in front of the said house for the purpose of marriage the petitioners cleared the frontal portion of the house cutting shrubs. There was no tree standing in front of the said house for cutting of which permission of the competent authority was required to be taken. Moreover, CCTV was installed on the staircase by the petitioners to avoid any untoward situation between the parties while using the staircase. It is also submitted that there is another CCTV already installed in front of the house facing the garden to maintain entry and exit of outsiders.
3I have perused the application under Section 144(2) of the Code of Criminal Procedure filed by the opposite parties very closely. From the Police report I did not get any support of the allegation that the petitioners has been trying to construct a garage on the front portion of the said house. The dispute between the parties is absolutely private in nature. No case is made out in respect of public nuisance or annoyance calling upon intervention of the jurisdiction under Section 144(2) of the Code of Criminal Procedure.
There is also no averment in the petition under Section 144(2) of the Code of Criminal Procedure to the effect that there was apprehension of breach of peace and tranquility. Section 144(2) cannot be utilized to establish individual right of a person. The decision of this Court in Mohan Kumar More -Vs.- State of West Bengal reported in 2009(4) CHN 367 may be relied on in this regard.
For the reasons stated above, the instant revision is admitted.
Petitioners are directed to serve notice upon the private opposite parties under registered speed post with acknowledgement due and file affidavit-of-service within three weeks from the date of this order. The State of West Bengal be served through the learned Public Prosecutor, High Court, Calcutta.
In the meantime, operation of the impugned order dated 23rd November, 2022 passed in MP Case No. 186/2022 under Section 144(2) of the Code of Criminal Procedure be stayed for a period of six weeks.
[ ( Bibek Chaudhuri, J. )